Being accused of DD when not actually DD !

[pbirkett]

Hi all,

My friend is not a member of this forum, and has posted this on pepipoo, which is what I personally recommended he does, but having glanced at this forum myself (having had no need to be a member of it) I notice its mainly to do with speeding etc, and after mentioning pistonheads he asked me if I would post what he has wrote on pepipoo over here too to get your advice.

I have spoken to him on the phone for 2 hours tonight and from what he told me it sounds like there is insufficient evidence to charge him for DD. He told me that he went around his girlfriends and found another man there. He then lost his tempter, vandalised the car and then drove home and downed a large amount of whisky, and went to bed. He then woke up when plod were banging on the door, where he was arrested and charged with DD.... anyway, his post is here, so would appreciate any replies, because as I say, it seems like there is (quite obviously) not enough evidence here. He knows he shouldnt have vandalised the car, but thats done now. Oh, and BTW its in Scotland, if that makes any difference...

[b]Hi,

A friend of mine introduced me to this forum and I hope you may be able to advise me if the police have acted correctly in charging me with drink driving (Road traffic act 1988 S5 (1) (a) ) I live in Scotland so maybe the law is different up here but here's what happened. I will keep it as concise as I can.

On Wednesday morning I drove my car 10 miles (completely sober) into town to get some cigarettes. When I was there I decided to pay my girlfriend a visit as I knew she would be up at that hour getting ready for work. She refused to answer the door and I was of the opinion she had another man in the house, I was pretty annoyed and pulled the windscreen wiper off her car and threw it at her door shouting a few expletives. I then drove home.

When I got back home I went upstairs to my bed and downed quite a lot of whisky to drown out the sorrow I was feeling. After a while I fell asleep. I was awoken by a loud knocking at the door and it was the police. They asked me my name and then told me they were arresting me on a breach of the peace allegation. Obviously the girlfriend had contacted the police and complained that I had snapped her windscreen wiper off.

I was handcuffed and escorted to the police station in town. I was breathalised in the police station and the readings were 103 ug / 100ml. They charged me with breach of the peace and also drink driving even though I had not been drinking in my car! As explained, I had downed quite a lot of whiskey after arriving home and in the privacy of my own house at no time had I been drinking in my car.

They obviously assumed that as they found me intoxicated when they arrived at my house that I had been drinking whilst in charge of my car. It's not a case of asking "can they do this?" (as they obviously have) it's more a case of can I actually be found guilty of drinking and driving even though I wasn't drinking and driving? As you can imagine I'm pretty shocked with this and would appreciate any comments, suggestions any of you may have. I realise the law is different in Scotland but surely it is for them to prove that I was driving in my car under the influence and not for me to prove I was drinking in my house??

I was tested on an INTOX EC/IR and was not asked to provide a urine sample or a blood sample. I found this strange but the officer informed me that I was not required to provide either a blood or urine sample.

To sum up, they were aware I had driven home as I had admitted visiting the girlfriend's house and had driven home. The fact I had taken a drink when I got home to calm my nerves surely doesn't constitute drink driving?

I appreciate any comments you may have on this.

Yours,

Mike.[/b]

[KB_S1]

Cannot offer advice I am afraid but, in my experience of a few friends stories. If they want to do you with DD, they will do it, regardless of evidence/truth.
I know two people who have been banned for DD. I strongly believe neither was guilty. There was no evidence to convict either other than they failed breath tests in respect of DD and they were owners of cars.

[Derek Smith]

103 is a lot of whisky. I would assume that the evidence would be based on the time between the incident and when arrested. If it is very short then there could well be an assumption that it would have been impossible to get it that high so quickly. 103 would take time to build up to. I'm not sure that I would have believed your friend if I'd been the arresting officer.

In my experience of such questions based on incidents that have happened to a third party, there is always, but always, more to it. Perhaps evidence of eratic driving, drunken behaviour at the scene, an accident. Did his girlfriend see his antics and suggest to the police that he'd acted drunkenly? The new boyfriend might have seen him drinking from a bottle, that sort of thing. One might ask if a sober man would damage a girlfriend's car by breaking off a wiper arm. Far from BotP I would have charged criminal damage as it was done to punish a friend for some assumed slight.

I was on a substantive breath test machine instructors' course and we experimented with how quickly the limit could be reached and it is far from instant. One chap who ate nothing in the evening and then drank a number of shots of scotch didn't blow over the limit for some hours. But he was still over at 11 am the following morning. Others took over an hour to top out.

The world is full of people who weren't drunk when driving or who had only drunk the occasional cup of coffee before blowing positive of the SBTM.

[pinkfloyd]

Hi guys,

I'm the guy charged with the DD. Basically I goes to the girlfriend's house early in the morning, she opens the door and tells me I can't come in she's getting ready to go to work.........

A bloke in his underpants comes to the door and asks her "who is it?" I asks "who the effin hell is that??!!" she slams the door shut and tells me to go away.

I puts two and two together and threw a wobbly snapping a windscreen wiper off her car, throwing it at her door and shouting out effin whore or something to that degree.

Gets into my car and drives the ten miles back to my house, gets inside and canes the best part of a bottle of scotch to drown my sorrows.

A while later the police are at my door, she obviously called them and complained about me snapping her wiper off etc. they tell me they are arresting me on suspicion of breach of the peace.

They cuff me and drive me to the local cop shop. When there they breathalise me and charge me with drunk driving as well as breach of the peace (even though I had not been drinking in my car)

The picture they are trying to paint is I snapped her wiper off so must have been under the influence and must have been driving whilst drunk.... all circumstantial but they have charged me with DD nonetheless even though I had, at no time, been drinking in my car.

As I say, they arrested me at home.... I was NOT in my car I was in my house.

[biglepton]

So what was the approximate time scale?

What time did you rip off the wiper, arrive home, get pissed and then hear the police arrive?

[GreenV8S]

I got the impression from the original post that she didn't answer the door, in the second version you saw both of them at the door. This sort of inconsistency makes to harder to take either version at face value.

[pinkfloyd]

biglepton said:

So what was the approximate time scale?

What time did you rip off the wiper, arrive home, get pissed and then hear the police arrive?

Ok... approximately 7:15am I pulled off the wiper, arrived home at about 7:30am and downed the best part of a bottle of scotch (yeh, I realise it sounds excessive but I was in a bloomin' foul mood!) I was breathalised at 9.04am the same morning.

I had nothing to eat, weigh 13 stone 11 lbs and am 6 foot 4 inches in height. I don't know how long it takes for the alcohol to absorb into the bloodstream (derek's post is very interesting) but I can assure you I felt absolutely hammered at 9.04am!

As I say, I was not in my car when the police arrived at my house I got out of my bed (where I'd been caning the scotch) to answer the door (which they were almost whacking down with their fists)

I don't know how it takes to arrive at a reading of 103 but with me it was obviously an hour and a half because I had not been drinking in the car. The previous night I had consumed 4 beers (4.1% volume) between the hours of 9pm and 11pm would this maybe have accelerated the morning consumption?

I don't know it's all so bloody confusing but one thing's for sure I was not drunk when driving the car.

[pinkfloyd]

GreenV8S said:

I got the impression from the original post that she didn't answer the door, in the second version you saw both of them at the door. This sort of inconsistency makes to harder to take either version at face value.

Yes, I can see why you think there's inconsistency but I didn't feel it necessary to waffle on about my domestic life when all I am trying to do is establish if the police have a case with regards to the DD and I tried to condense my original post and keep to the point which is the DD charge.... I could tell you a lot more about the domestic situation but don't think it's relevant to the specific DD charge I am discussing and will only bloat the topic with unnecessary filler.

[R_U_LOCAL]

In order to secure a conviction for drink-driving, the Police need to prove two things.

1. That you were driving a mechanically propelled vehicle on a road or public place.

2. That, at the time you were driving, the proportion of alcohol in your system was above the prescribed limit.

In answering your question, I'm presuming that there is no question mark over whether you drove your car or not, so the only issue is as to whether you were over the limit at the time.

I can also only answer as far as my experiences as a traffic officer in an English force is concerned - I've no idea if there are many differences between that and Scottish law/procedure.

A reading of 103 microgrammes of alcohol per 100 millilitres of breath is very high. The legal limit is 35, although English forces don't prosecute unless the breath alcohol level is 40 or above. To achieve an alcohol level three times the legal limit is indicative of a sustained consumption of a large amount of alcohol.

You won't have been offered a blood or urine test as this is only offered if your breath reading is above 35 but below 50, or if, for medical reasons, you can't provide a specimen of breath.

In cases like yours, where a defendant is claiming post-incident alcohol consumption (what is commonly known as the hip-flask defence), the Police rely heavily on evidence from an independent forensic scientist, who will carry out a "back-calculation" of a subject's alcohol level.

The rate at which the body absorbs, and loses alcohol is fairly consistent, but differs between individuals. The Scientist would need to know a subject's height, weight, sex and age, and they'd also need to know detailed information about how much they'd had to eat in the last 24 hours, and what they'd had to drink, amounts, strength of the drink, etc, etc.

If I arrest someone for drink-driving, for instance, following a fail-to-stop accident, they are asked a very specific set of questions in front of the custody officer to cover any possible allegations of post-incident drinking. They will be asked if they have consumed anything since the time of the incident, taken anything, inhaled anything, used any mouth spray or mouthwash, etc, etc.

This is the crucial point if you're claiming post-incident drinking. If you answer "no", and then turn up at court claiming that, in fact, you necked a bottle of whiskey after the incident, the court are unlikely to believe you, as you were specifically asked when you were booked in and answered "no". Don't forget, that all these questions and answers are recorded both on the custody record and on the drink-drive forms, and that most custody offices have constantly-recording CCTV systems, so your answers to these questions will have been recorded at least in triplicate.

If, however, the subject does claim post incident drinking at this point, they will be asked briefly what they've consumed, and their answers will be recorded at the time. They will then undergo the station breath-test procedure as normal.

Once they're fit to be dealt with (sobered up), I would then always interview the subject on tape. I would ask a detailed set of questions regarding their food and alcohol consumption, and these details, together with their height, weight etc will be recorded on a special form. For best evidence, it's also recommended that the Police seize any empty or partially-empty alcohol bottles or containers from the subject's house, which would be sent off to the lab with everything else.

The forensic scientist will then make their calculation, and come up with a range of alcohol levels which, in their opinion, the subject will have been at, at the time of the incident.

Once that expert opinion has been obtained, then the CPS will make a decision as to whether to proceed or not.

Having said all that, the OP states that they were charged immediately with drink-driving, which makes me suspect that, when they were initially asked about post-incident consumption, they gave the answer "no". If this is the case, I'm afraid they'll have a hard time convincing the court of their story.

[Derek Smith]

R_U_LOCAL said:

Gave an excellent summary of procedures.

The charging procedure is different in Scotland to that in England/Wales so I would not necessarily feel that a decision has been made, as it would south of the wall.

I've just had a look at some of my notes and I would suggest that 103 tends to indicate, as RULocal hinted, that the defendant had a significant amount of alcohol in his blood before the apres incident drinking. There's no way of being specific without forensics using their procedures.

Whilst I do not know the details of what went on in this incident, in such circumstances the evidence of intoxication can be deduced by answers given by the (ex?) girlfriend and the bloke about the chap's conduct at the house. If so then the breath test on arrest would have been the norm. The criminal damage, and probably what was said at the scene, would have negated any sympathy the officers might have felt.

But as said, a lot depends on what the forensic report concludes. They will come up with an 'at least' figure.

[SS2.]

Derek Smith said:

R_U_LOCAL said:

Gave an excellent summary of procedures.

[Yung Man]

If you know the police are on their way round your gaf and you've had a skin full and been driving best thing to do is neck a bottle of whisky, need I say more.

NEXT.

[bobt]

R_U_LOCAL said:

In order to secure a conviction for drink-driving, the Police need to prove two things.

A reading of 103 microgrammes of alcohol per 100 millilitres of breath is very high. The legal limit is 35, although English forces don't prosecute unless the breath alcohol level is 40 or above. To achieve an alcohol level three times the legal limit is indicative of a sustained consumption of a large amount of alcohol.

103 microgrammes may be 3 x the legal limit for driving, but in drinking terms it is not really very high at all. IIRC two double shots of regular strength spirits will send most people over the limit. So 103 is about three doubles. Now your regular bottle of spirits holds 32 measures or sixteen doubles, so even if the accused had drunk one quarter of a bottle (4 doubles) the 103 level should not be to hard ot reach, especially as he would have somee left in in his blood from four pints the evening before.

[Deva Link]

R_U_LOCAL said:

If I arrest someone for drink-driving, for instance, following a fail-to-stop accident, they are asked a very specific set of questions in front of the custody officer to cover any possible allegations of post-incident drinking. They will be asked if they have consumed anything since the time of the incident, taken anything, inhaled anything, used any mouth spray or mouthwash, etc, etc.

This is the crucial point if you're claiming post-incident drinking. If you answer "no", and then turn up at court claiming that, in fact, you necked a bottle of whiskey after the incident, the court are unlikely to believe you, as you were specifically asked when you were booked in and answered "no".

That's interesting, as a local "worthy" got done recently when the Police turned up at his door having been alerted to wobbly driving. He got done, and lost on appeal (with a top QC defending) because he didn't *immediately* tell the Officer who turned up at the house that he'd had a large brandy on arriving home.

[mystomachehurts]

I'm astonished at this. Been there, done the very same thing, except I didn't get a knock on the door from plod (probably because I didn't do any criminal damage).

Still, IMO it's no big deal to neck the best part of a bottle of whiskey in sub one hour if you are pissed off enough and determined that you really want to get out of it.

It really isn't a big deal to swagger round your own home at 8 in the morning with a litre of whiskey necking it like there's no tomorrow. To have someone then come to the door and accuse you of drink driving after doing this really takes the biscuit.

Where the hell did the innocent until proven guilty concept go? And how the hell do you prove the guilty when the guy wasn't even caught in his car?

[bryan35]

may find this interesting...............

20% of ingested alcohol absorbed in the stomach 80% absorbed in the upper small intestine. Absorption is most rapid when the stomach is empty. Accelerated gastric emptying also accelerates therate of alcohol absorption due to rapid passage of alcohol into the small intestine where absorption ismore rapid. Gastric emptying accelerated by tolerance (habituation) to alcohol, operative reduction in the stomachsize (e.g. gastrectomy). Gastric emptying decreased by food in stomach, certain drugs. The apparent sobering effect of foodprobably due to the delay in gastric emptying.Gastric emptying also affected by the type of beverage consumed (different beverages have differentalcohol concentrations and congeners), emotional state, drugs, food. There is considerable intra and inter-individual variation in the rate of absorption. The Peak BAC reached when alcohol is taken with a meal may only reach 50% of that reached whenalcohol is taken on an empty stomach. In the presence of food in the stomach upto 20% of ingestedalcohol may be oxidised before it can be absorbed. Absorption is by passive diffusion and proceeds as long as the alcohol concentration in gastointestinaltract (stomach and duodenum) exceeds that in the blood. Absorption is most rapid when the alcoholconcentration in the stomach is 10%-20% (fortified wine, beer & 'chaser'). Higher concentrations ofalcohol (neat spirit) irritate the gastric mucosa, causing increased secretion of mucus and delay in gastricemptying and absorption. Absorption rapid from carbonated drinks (champagne). Alcohol in beer is absorbed more slowly (low alcohol concentration, carbohydrate rich).If alcohol is taken slowly it can be eliminated as fast as it is being absorbed; BAC will not rise anyfurther.Absorption is generally complete in one to three hours

[bryan35]

seems that strong alcohol (whiskey) stops the stomach emptying into the small intestine, but then again, complete absorption is usually within 3 hours.

I don't think the case will stick personally.


One thing I didn't realise is the bit about passive absorption. If the alcohol concentration is lower in the intestines than in the blood you don't absorb any more alcohol. Sp presumably, the ammount you drink has less and less of an effect the more you have.

Didn't know that!. That's perhaps how people can 'drink all day'

[Derek Smith]

bryan35 said:

20% of ingested alcohol absorbed in the stomach 80% absorbed in the upper small intestine. Absorption is most rapid when the stomach is empty.

When we experimented at the SBTM instructors' course our finding were, according to the course leaders, similar to those of other students. We found:

If you drink spirits on an empty stomach, absorption is much slower. One chap didn’t ‘peak’ until the following morning but blew under all evening. The theory is that the alcohol ‘stuns’ the sphincter muscle at the bottom of the stomach so limiting absorption. It evidently, according to our fellow student, did not have the same effect on the sphincter muscle at the other end of his intestines.

Further, all students reckoned that they felt too drunk to drive even when blowing considerably below the prescribed limit.

We also found that it was very difficult to operate the SBT machine when everyone is giggling.

[Fort Jefferson]

R_U_LOCAL said:

In order to secure a conviction for drink-driving, the Police need to prove two things.

1. That you were driving a mechanically propelled vehicle on a road or public place.

2. That, at the time you were driving, the proportion of alcohol in your system was above the prescribed limit.

I think you will find, they only have to prove "intent" to drive. I'm sure Von will be along soon to give you chapter and verse.

[Hiawatha]

It there only me think this man he speak with fork tongue?.