Drink Driving Defences
The "hip Flask Defence" Author: Graham Walker POST-INCIDENT DRINKING OR THE aHIP FLASKa DEFENCE The Road Traffic Act 1988 contains a number of offences connected with drink or drugs, including the offence of driving or being in charge of a vehicle whilst bei...
The "hip Flask Defence"
Author: Graham Walker
POST-INCIDENT DRINKING OR THE aHIP FLASKa DEFENCE
The Road Traffic Act 1988 contains a number of offences connected with drink or drugs, including the offence of driving or being in charge of a vehicle whilst being above the legal limit for alcohol.
A specimen of breath, blood or urine from a driver suspected of any of these offences will normally be taken by the police for use in the case against him.
The effect of section 15 of the Road Traffic Offenders Act 1988 (the RTOA) is that it will be presumed that the level of alcohol in the specimen was at least the same as the level of alcohol in the suspected driver's breath, blood or urine at the time of the alleged offence. i.e Whatever your reading then the court reckon that this was the reading when you were driving or in charge of the vehicle.
However if a driver drank after the alleged offence, then the level of alcohol in the specimen will obviously be higher than the level of alcohol at the time of the alleged offence. This is often referred to as the "Hip Flask Defence". It comes from the reference of an accused to taking a drink from his hip flask to steady his nerves after a road accident. Nowadays Sheriffs are suspect of this defence and it will take a great deal to persuade one that you were so shocked by an accident that you had to have a drink to calm yourself down. The social climate has changed since the hip flask defence first made its way into the courts of Scotland and most Sheriffs would want to hear a VERY GOOD reason for you taking the decision to drink especially where you would know or reasonably expect the police to become involved in the investigation of an road traffic incident.
In cases where the suspected driver drank alcohol after he stopped driving or being in charge of the vehicle but before the specimen was taken, section 15 of the RTOA provides that it is a defence to show that the post-incident drinking caused the specimen to have a reading which was above the legal limit.
What the defence need to prove
Usually the crown have to prove your guilt but here we have the situation where we, the defence have to establish your innocence! OK, we do not need to prove it "Beyond a reasonable doubt" but the standard that we require to meet is still a high one.
The defence must show that the post-incident drinking caused the specimen reading to be over the legal limit on a balance of probabilities - that is, a greater than 50% likelihood.
The defence case has to be particularly strong to overcome the presumption in section 15 of the RTOA. The driver's evidence of what he drank must be verified by commissioning a toxicology report from a qualified expert.
We would normally call upon the services of a respected and experienced forensic toxicologist to compile a report based on the facts in your case.
This report will show what the effect of the post-incident drinking had on the specimen reading. The expert will calculate the rate at which the your body processed the alcohol that was consumed. The expert must be provided with accurate information on the following, if a worthwhile report is to be compiled.
· How much you drank after the incident
· The alcohol content of what you had to drink
· The time of the post-incident drinking, and the period over which you drank
· Height, weight, age and sex of accused
If a driver had nothing to drink before the incident (that is, he only drank afterwards), the defence would have to lead evidence of this fact. If a driver drank before the incident and had a post-incident drink, the defence would have to lead evidence that any pre-incident drinking did not put him over the legal limit. The defence should ask the toxicologist to calculate what the specimen reading would have been on the basis of the driver's pre-incident drink.
The prosecution may use an expert toxicology report to show that, even if the post-incident drinking is discounted, the driver would still have been over the limit when he was driving or in charge of the vehicle. Remember, section 15 of the RTOA contains a presumption that the level of alcohol in the specimen was at least the same as the level of alcohol in the driver's breath, blood or urine when he was driving or in charge of the vehicle. It therefore allows for the possibility that the level could have been higher than the level in the specimen.
This is a difficult defence to establish and it requires expertise not just from the toxicologist but from the solicitor conducting the case. A great deal of case law exists in this area and it is a legal minefield for the uninitiated and even for many experienced solicitors. For more information or a FREE online case consultation goto www.roadtrafficlaw.com/ask_a_lawyer.htm
drink driving defences?
I was stopped drink driving a few months ago, the truth is someone spiked my drink, not realising I was driving, hoping to get me in bed pissed and have sex with me, and and I had no idea until a couple of people told me next day.
But the court just says yeah likely story usual distrusting attitude,
I then came across a site, http://www.drinkdrivingdefences.com
which says of letters you can write to a court that will either get you the absolute bare minimum ban and sentence or even thrown out altogether, which I feel would be justified under the circumstances, as I have no sympathy with people who drink drive knowingly, because of the obvious dangers involved, but feel my situation is different,
Has anyone looking ever ordered this information and if so can anyone pass this information on to me, I have no problem paying for it, but the case is next week and cant get it adjourned, the information wont arrive in the post on time, so i f anyone can give me this info, your help really would be very warmly appreciated, thanks very much for any help provided
I spent many years as a court reporter and saw people try to use this defence many times. I saw it work precisely twice, so it is possible but courts are very sceptical.
OK here’s what they will be looking at. Firstly you have to show that therev is absolutely no chance you could have been over the limit without your drink being spiked. So if you admit to drinking practically any alcohol that night, you’ve lost.
Next, you need people who can provide reliable evidence (not hearsay evidence) that your drink was spiked. In effect this needs to either be the person who spiked your drink or who saw it being spiked (not just someone who was told that it was or heard about it). They need to be willing to come to court to give evidence. The woman can be made to come to court via a warrant, but if she’s a convincing liar and denies it, she could do your case more harm than good.
Finally, if the court accepts the above two stages, they will want to hear about why you didn’t realise you were too drunk to drive.This will depend how far over the limit you were whether you can convince anyone about this. If you say you did feel strange but thought you were getting a cold or similar that may be accepted.
As to the site – please don’t pay for dubious legal advice that you can get for free elsewhere! If you are going to go for the above option you really need a solicitor to represent you. He won’t have time to build your case in a week, but can get an adjournment to give him time to gather evidence. Try and find a solicitor locally who’s expert at motoring matters.
There are two ways of dealing with this. One is to defend the case against you (as above); the other is to rely on mitigation. That means that once you have been convicted of the offence you set out various factors which state why your punishment should not be at the most severe end of the scale. This would include things like apologies and remorse; saying that you had learned your lesson; that you had a perfect driving record until now; that your job/family would suffer disproportionately if you had an extended ban etc.
Generally, only dishonesty and violence offences will prohibit you from joining Australian Defence forces. Repeat drink driving will prevent you from enlisting as this is a demonstration of alcoholic behaviour which risks bring the defence force into disrepute.
In respect of having your record removed, I am unsure if Queensland has the same legislation in respect of what is called spent convictions, as exists in some other states. In those states, if you have a clean record for 10 years after your most recent offence, then your record is considered spent, unless the earlier conviction was for a serious matter such as serious violence, sexual offending etc..
In some states, you need to lodge an application to have prior records removed from your criminal history for it to become spent.
To answer your specific question, I know each person applying to join the defence forces are treated on a case by case basis. This means your drink driving charge may or may not effect employment prospects. Only an application to join and subsequent assessment will answer your question in satisfaction to you.
ahh lets see cops are gonna charge him with DUI. MP’s are gonna charge him with the same thing and his Units gonna slap him with a 12 month notice which means nothing good goes his way. thats usual in regular army. worst case if its over the news and people are hurt he “COULD” get booted for bringing the army into disripute, but thats unlikely also they usually make him go to alcohole awareness.
Will drink driving effect your chances of getting into the Australian army?
A while ago i completed a criminal history report and my record was clean, i was accepted into the defence force and go in March, i have since received a DUI conviction for a minor reading. Is it best to tell them even if ive already been accepted? will this effect my chances?
thanks
drink driving at 63 points and no insurance what can i expect cheers?
i was drinking throuout the day went home at 10 picked the misses up at 12 30 and got pulled just my luck im and idiot for driving anyway but just wondering what to expect as in lenght of ban and fine, will i be offerd a course to reduce my ban, is there anything i can do that might help in my defence cheers for your time.
UK? Automatic ban of minimum 1 year and large fine (depending on income).
No, no courses to reduce the ban.
Elsewhere in the world – no idea.
Drink driving with no licence conviction Australia?
About 6 months ago i was caught driving with no licence under a blood alcohol limit under .09. I am looking at going into the defence force and i was just wondering if this will impair the jobs i can apply for. Also the main question is can i get it removed from my record in Queensland, Australia.
serious answers only please.
What will the australian defence force do, if you are caught drink driving and unlicensed in civilian society?
My friend is in teh ADF reserves, yesterday he was driving a friend home, she was too drunk to drive, he was also drunk but not as drunk as her. the car lost traction on a bend and hit a power line. so the factors here is that he was drink driving and unlisenced. will he just be charged by military police or be kicked out?
Tell them, it’s not going to stop you getting in.