Retrospective drink driving - not right surely?
Discussion
Have you read ANY of this thread? Seriously?
Reading, can you manage it?
In a hip-flask case, the burden of proof lies on the defendant, not the police - the other way round from normal. As Cat, who I think is a solicitor/barrister just posted -
s15 RTOA 1988 said:
(2)Evidence of the proportion of alcohol or any drug in a specimen of breath, blood or urine provided by or taken from the accused shall, in all cases (including cases where the specimen was not provided or taken in connection with the alleged offence), be taken into account and, subject to subsection (3) below, it shall be assumed that the proportion of alcohol in the accused’s breath, blood or urine at the time of the alleged offence was not less than in the specimen.
( 3 )That assumption shall not be made if the accused proves—
(a)that he consumed alcohol before he provided the specimen or had it taken from him and—
(i)in relation to an offence under section 3A, after the time of the alleged offence, and
(ii)otherwise, after he had ceased to drive, attempt to drive or be in charge of a vehicle on a road or other public place, and
(b)that had he not done so the proportion of alcohol in his breath, blood or urine would not have exceeded the prescribed limit and, if it is alleged that he was unfit to drive through drink, would not have been such as to impair his ability to drive properly.
YOU have to prove you are innocent, the PPS do not have to prove you are guilty.
Reading, can you manage it?
In a hip-flask case, the burden of proof lies on the defendant, not the police - the other way round from normal. As Cat, who I think is a solicitor/barrister just posted -
s15 RTOA 1988 said:
(2)Evidence of the proportion of alcohol or any drug in a specimen of breath, blood or urine provided by or taken from the accused shall, in all cases (including cases where the specimen was not provided or taken in connection with the alleged offence), be taken into account and, subject to subsection (3) below, it shall be assumed that the proportion of alcohol in the accused’s breath, blood or urine at the time of the alleged offence was not less than in the specimen.
( 3 )That assumption shall not be made if the accused proves—
(a)that he consumed alcohol before he provided the specimen or had it taken from him and—
(i)in relation to an offence under section 3A, after the time of the alleged offence, and
(ii)otherwise, after he had ceased to drive, attempt to drive or be in charge of a vehicle on a road or other public place, and
(b)that had he not done so the proportion of alcohol in his breath, blood or urine would not have exceeded the prescribed limit and, if it is alleged that he was unfit to drive through drink, would not have been such as to impair his ability to drive properly.
YOU have to prove you are innocent, the PPS do not have to prove you are guilty.
guindilias said:
Unfortunately, drinking after driving is pretty much the only case I know of where "guilty until proven innocent" is the rule.
There are lots of examples such as proving you have car insurance, however this isn't one of them!the Police still have to prove that absent a defence you were 'drink driving', the defence then has to cast reasonable doubt (on balance of probabilities) that their version is a/ true and b/ can explain the over the prescribed limit countback result. That applies to many crimes such as S172 of the road traffic act or assaulting someone in your home you think is a threat (where the Police have to prove the assault and you have to show you had the statutory defence).
Did you read what I wrote...the Police have to prove he was drunk, also for that matter that he was driving, they can't just rock up in court and state it.
This is like many cases where the evidence may point to guilt but a defence exists, like I exampled for you to read.....it may be the only one you know of, which just indicates how little examples you know I guess which may explain your illogical attitude.
This is like many cases where the evidence may point to guilt but a defence exists, like I exampled for you to read.....it may be the only one you know of, which just indicates how little examples you know I guess which may explain your illogical attitude.
He was breathalysed as drunk at the station.
He was seen stumbling ( allegedly because an assault happened when he returned home in his car).
He says that the police turned up 90 minutes after the call was made - police records have it as 3 minutes after the call was made.
He has no proof that he was not drunk while driving.
He won't be getting off on this one, I can virtually guarantee it.
He was seen stumbling ( allegedly because an assault happened when he returned home in his car).
He says that the police turned up 90 minutes after the call was made - police records have it as 3 minutes after the call was made.
He has no proof that he was not drunk while driving.
He won't be getting off on this one, I can virtually guarantee it.
Edited by guindilias on Saturday 12th May 05:56
The Rookie said:
There are lots of examples such as proving you have car insurance, however this isn't one of them!
the Police still have to prove that absent a defence you were 'drink driving', the defence then has to cast reasonable doubt (on balance of probabilities) that their version is a/ true and b/ can explain the over the prescribed limit countback result. That applies to many crimes such as S172 of the road traffic act or assaulting someone in your home you think is a threat (where the Police have to prove the assault and you have to show you had the statutory defence).
Wrong again. As previously mentioned, legal burden on the defendant.the Police still have to prove that absent a defence you were 'drink driving', the defence then has to cast reasonable doubt (on balance of probabilities) that their version is a/ true and b/ can explain the over the prescribed limit countback result. That applies to many crimes such as S172 of the road traffic act or assaulting someone in your home you think is a threat (where the Police have to prove the assault and you have to show you had the statutory defence).
Also wrong about self defence. Prosecution must disprove self defence. The burden on D is evidential only.
Personally I'm putting this thread, and most of the advice on it, firmly in the bracket of 'things you read in the internet'.
Equivalent to 'the man in the pub said'.
We've got two traffic lawyers both stating repeatedly the police don't need to prove you were driving?
I've read the RTOA. The sections in question regarding the use of specimens are clear, it's the defendant's job to prove (incidentially it does not say which of the two - the balance of probabilities, or beyond reasonable doubt) that EITHER the specimen was taken after the alleged offence, OR the specimen was taken after he had ceased to drive.
All the time, referring to the alleged offence.
The alleged offence being, driving while over the prescribed limit.
Section 15, subsections 2 and 3, deal with the defendant's responsibility to prove they were not over the prescribed limit.
The RTOA is not putting the onus on the defendant to prove they were not driving. Unless there is any case law, which I am not aware of because I am not a lawyer, the legislation reads as it's still the prosecution's responsibility to prove beyond all reasonable doubt that the defendant was driving.
What are the police presenting as evidence he was driving? The neighbour? Or did OP's friend say something very silly post-caution?
If the law exists as some of the motoring lawyers on this thread are suggesting it, then theoretically Person A who has a grudge against Person B could report Person B for drink driving, knowing that when breathalysed, they will be OPL because they're a bottle of wine down, having been sitting in all night.
I mean, Person B doesn't own or have access to a car, but that's not a problem right?
Person B doesn't know how to drive, but that doesn't matter either?
Equivalent to 'the man in the pub said'.
We've got two traffic lawyers both stating repeatedly the police don't need to prove you were driving?
I've read the RTOA. The sections in question regarding the use of specimens are clear, it's the defendant's job to prove (incidentially it does not say which of the two - the balance of probabilities, or beyond reasonable doubt) that EITHER the specimen was taken after the alleged offence, OR the specimen was taken after he had ceased to drive.
All the time, referring to the alleged offence.
The alleged offence being, driving while over the prescribed limit.
Section 15, subsections 2 and 3, deal with the defendant's responsibility to prove they were not over the prescribed limit.
The RTOA is not putting the onus on the defendant to prove they were not driving. Unless there is any case law, which I am not aware of because I am not a lawyer, the legislation reads as it's still the prosecution's responsibility to prove beyond all reasonable doubt that the defendant was driving.
What are the police presenting as evidence he was driving? The neighbour? Or did OP's friend say something very silly post-caution?
If the law exists as some of the motoring lawyers on this thread are suggesting it, then theoretically Person A who has a grudge against Person B could report Person B for drink driving, knowing that when breathalysed, they will be OPL because they're a bottle of wine down, having been sitting in all night.
I mean, Person B doesn't own or have access to a car, but that's not a problem right?
Person B doesn't know how to drive, but that doesn't matter either?
Another nonsense post.
You don’t name the motoring lawyers so I don’t know if you’re implying that I’m wrong, but if you can find where I’ve posted that the prosecution doesn’t have to prove actual driving (in an OPL case) then £500 to a charity of your choice.
You can read but you plainly don’t understand. Where the burden is on the defendant then the civil standard applies. This is elementary stuff. Very obvious that you’re not a lawyer. Probably no point mentioning that.
You don’t name the motoring lawyers so I don’t know if you’re implying that I’m wrong, but if you can find where I’ve posted that the prosecution doesn’t have to prove actual driving (in an OPL case) then £500 to a charity of your choice.
You can read but you plainly don’t understand. Where the burden is on the defendant then the civil standard applies. This is elementary stuff. Very obvious that you’re not a lawyer. Probably no point mentioning that.
guindilias said:
agtlaw said:
Wrong. Legal burden on the defendant.
You might find this man to be a barrister. Specialising in road and traffic law. I'd imagine he knows a lot more than you or I do about the subject.guindilias said:
Did you read and understand the bit of the act I posted above? He is assumed to have being driving. He was drunk. Now he has to prove that he was under the limit while driving. It's that simple.
You don't seem to grasp the basic point that they have to have evidence that will stand up in court that he was driving within a period when a breathalyser test might be assumed to be relevant.You could breathalyse half the people on the high street on a Saturday and get positive tests but it is for the Police to show they have evidence
they have been driving, it is not for the people to have to prove they were not driving. In the UK there is a presumption of innocence.
The police have a positive breathalyser test, what evidence do they have that he had been driving within a period where that test may be relevant?
It is not an offence to fail a breathalyser test.
When was the call made? Given that the alleged assault was over a parking space when he returned home, and there was a "commotion" outside, I would imagine there would be plenty of independent curtain twitchers as witnesses that he had been driving.
There could be CCTV from anywhere along the route. We still are not getting the full story, or, I suspect, the true story.
IANAL but having been through it myself, I strongly suspect he is fecked.
There could be CCTV from anywhere along the route. We still are not getting the full story, or, I suspect, the true story.
IANAL but having been through it myself, I strongly suspect he is fecked.
guindilias said:
When was the call made? Given that the alleged assault was over a parking space when he returned home, and there was a "commotion" outside, I would imagine there would be plenty of independent curtain twitchers as witnesses that he had been driving.
There could be CCTV from anywhere along the route. We still are not getting the full story, or, I suspect, the true story.
IANAL but having been through it myself, I strongly suspect he is fecked.
As far as I know the only CCTV is from the Co-op "45 seconds walk from the home addres".There could be CCTV from anywhere along the route. We still are not getting the full story, or, I suspect, the true story.
IANAL but having been through it myself, I strongly suspect he is fecked.
My friend has already pointed the police to this (twice) as it proves he wasn't falling about the place, but it also proves the timing.
Only witnesses as far as I know: friend, friend's 10yo son, neighbour who he had the fracas with and another neighbour. Not sure what exactly she saw but she's proven unreliable in relation to another incident.
Hackney said:
As far as I know the only CCTV is from the Co-op "45 seconds walk from the home addres".
My friend has already pointed the police to this (twice) as it proves he wasn't falling about the place, but it also proves the timing.
Only witnesses as far as I know: friend, friend's 10yo son, neighbour who he had the fracas with and another neighbour. Not sure what exactly she saw but she's proven unreliable in relation to another incident.
But he has told the police he was driving? Or does the Co-op have external CCTV that would show him driving, parking, whatever? You don't need to be stumbling all over the place to be over the limit...My friend has already pointed the police to this (twice) as it proves he wasn't falling about the place, but it also proves the timing.
Only witnesses as far as I know: friend, friend's 10yo son, neighbour who he had the fracas with and another neighbour. Not sure what exactly she saw but she's proven unreliable in relation to another incident.
guindilias said:
Hackney said:
As far as I know the only CCTV is from the Co-op "45 seconds walk from the home addres".
My friend has already pointed the police to this (twice) as it proves he wasn't falling about the place, but it also proves the timing.
Only witnesses as far as I know: friend, friend's 10yo son, neighbour who he had the fracas with and another neighbour. Not sure what exactly she saw but she's proven unreliable in relation to another incident.
But he has told the police he was driving? Or does the Co-op have external CCTV that would show him driving, parking, whatever? You don't need to be stumbling all over the place to be over the limit...My friend has already pointed the police to this (twice) as it proves he wasn't falling about the place, but it also proves the timing.
Only witnesses as far as I know: friend, friend's 10yo son, neighbour who he had the fracas with and another neighbour. Not sure what exactly she saw but she's proven unreliable in relation to another incident.
Also, neighbour's statement that he was staggering (due to being drunk) would be disproven by cctv of him walking normally, but it was as much about the timeline as anything else.
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