Ramifications of failure to supply breath specimen

[monthefish]

13th said:

I have failed a roadside breath test many years ago after consuming just 2 125mls of white wine (that shows how long ago it was, at time when that's all pubs had for the little lady ; although maybe lucky in that respect) I happily took the test 100% sure of I was way under the limit only to look on in horror as it turmed to red. I'd before that been chatting happily with the police officer about the car etc and I think it must have been the look of pure shock that the officer then asked me what I'd drunk the night before (this was lunchtime)and I said I'd been to a party. He asked where I was heading for and I gave him an address less than half a mile away. He said he's follow me there and not expect to see the car move for the next 24 hours and that would be that last of it.

I must have been boarderline? and it was a long time ago but a lesson well learnt. I still shudder at the thought of what losing my licence would have meant to me and feel physically sick at the thought of what might have been if I'd caused an accident.

So you had a heavy night the night previously, and then topped up with another two glasses of wine at lunchtime, and then drove? (or are you saying the two glasses of wine were from the night before)

[13th]

monthefish said:

So you had a heavy night the night previously, and then topped up with another two glasses of wine at lunchtime, and then drove? (or are you saying the two glasses of wine were from the night before)

I'd had a couple of party sized glasses of wine ie., not pub measures no doubt considerably larger the night before, certainly not a skinfull and was tucked up in bed about 11pm if I recall rightly, the two small glass were over lunch the day I was stopped which was about 2pm

I'm not clarifying the above in any way to justify myself, as I say I was horrified and not something Im proud of more passing on a cautionary tail.

[littleredrooster]

13th said:

... a cautionary tail.

My cat has one of those. She waves it before she bites you.

:}

[markmullen]

swerni said:

I hear the police had a different attitude back in the early 70's

Put your knickers on and shut it you slaaaaag.

[13th]

swerni said:

I hear the police had a different attitude back in the early 70's

[Ms Demeanor]

XCP said:

The police officers will be able to give evidence of whether he was drunk or not. I've seen people convicted of driving whilst unfit on this evidence alone.

Good point. If they can show unfit through drink or drugs they don't need an evidential sample. You will often see the cps change the charge at court when someone has a decent reasonable excuse argument for failing to supply. So watch out for that one.

[Ms Demeanor]

The issue of ban or not for failing to supply depends on what the police were investigating in the first place. If they were investigating drunk in charge then a ban is not automatic. If you fail to supply in the course of an investigation into drink driving and get convicted then a ban is automatic.

I had a chap who had served two years of a three year ban (second drink drive related offence in 10 years) before he came to me. He wanted to make an app to lift the ban early after serving the first two. The offence was failing to supply in relation to being in charge of the car - not in relation to an investigation into drink driving. Therefore the District Judge had got it wrong. It was not a mandatory ban case where the rules states 3 years for a second offence in 10 years. He should have got 10 points or a discretionary ban. We listed an appeal out of time and made an application to reopen the case to the DJ under s.142 at the same time. The DJ got the clearks to phone us and he asked for it to be listed back in front of himself within the week. He reopened and lifted the ban imediately and apologised in open court. These issues are never straight forward. If the investigation was into being in charge then its not a manadatory ban.

[Frix]

Quite. I had quite an interesting Newton hearing about this very thing. With no evidence of driving the court gave the defendant points but no ban.

[XCP]

Ms Demeanor said:

Good point. If they can show unfit through drink or drugs they don't need an evidential sample. You will often see the cps change the charge at court when someone has a decent reasonable excuse argument for failing to supply. So watch out for that one.

I had a Portuguese guy whose defence was he didn't understand English and so couldn't understand the requirements being made.
He was however pissed as a parrot, became violent and tried to punch me and others. Got convicted of driving whilst unfit and drunk and disorderly. ( CPS did indeed change the charge at court)

[Frix]

Drunk & Disorderly?! Talk about playing it safe!!

[Red 4]

XCP said:

I had a Portuguese guy whose defence was he didn't understand English and so couldn't understand the requirements being made.
He was however pissed as a parrot, became violent and tried to punch me and others. Got convicted of driving whilst unfit and drunk and disorderly. ( CPS did indeed change the charge at court)

How so XCP ? Drunk and disorderly must be committed in a public place. A police station custody office is not a public place.

Unless of course the d/p's behaviour was disorderly prior to arrival.

nb. not doubting your account - just interested.

[XCP]

Frix said:

Drunk & Disorderly?! Talk about playing it safe!!

It may have been S5. Drunk and lairy in any case

[Frix]

Red 4 said:

How so XCP ? Drunk and disorderly must be committed in a public place. A police station custody office is not a public place.

Unless of course the d/p's behaviour was disorderly prior to arrival.

nb. not doubting your account - just interested.

Have you got any case law for custody not being a public place? This keeps coming up but can't find any definitive guidance. Have also had convictions for public order S4-5 committed in custody.

[Red 4]

Frix said:

Have you got any case law for custody not being a public place? This keeps coming up but can't find any definitive guidance. Have also had convictions for public order S4-5 committed in custody.

It's in the definition of d+d.

S4 AND S5 are committed in public or private. Exceptions can apply to being in a dwelling. Again, as defined by the statute.

edit; apologies - skim reading. Custody is by definition not a public place I would suggest - any place to which the public have access whether by means of payment or otherwise ?

Edited by Red 4 on Thursday 31st January 14:28

[Frix]

Red 4 said:

It's in the definition of d+d.

S4 AND S5 are committed in public or private. Exceptions can apply to being in a dwelling. Again, as defined by the statute.

Sorry. I perhaps was not clear. It is the "custody is not a public place" that I am seeking to clarify. I have no issues with the offence definitions.

[XCP]

Red 4 said:

How so XCP ? Drunk and disorderly must be committed in a public place. A police station custody office is not a public place.

Unless of course the d/p's behaviour was disorderly prior to arrival.

nb. not doubting your account - just interested.

That was what he was originally nicked for. The fact that he was driving immediately beforehand emerged later. A funny old business all round really. He had lived and worked in the UK for years and years but needed an interpreter at court because he didn't understand English. He was fluent enough when he threatened to kill me though.

[Red 4]

Frix said:

Sorry. I perhaps was not clear. It is the "custody is not a public place" that I am seeking to clarify. I have no issues with the offence definitions.

No, you were clear. My error - apologies.

I haven't any case law re; custody but I think most would agree it is not a public place. Subject to the usual legal arguments of course.

[Frix]

I can't see why it wouldn't be. I thought the test for it was "place to which the public have access, by payment or otherwise". I think custody fits this as well as many other places.

[Red 4]

Frix said:

I can't see why it wouldn't be. I thought the test for it was "place to which the public have access, by payment or otherwise". I think custody fits this as well as many other places.

I see your point. I see the argument. I also see the other argument.

I can't help I'm afraid re; case law. I would also be interested to know of any stated cases.

I think custody will be defined somewhere as other than a public place. It can be used as a place of safety, for example. Access is not granted to the "general public", etc.

Edited by Red 4 on Thursday 31st January 14:44