Is this possible?

Convicted Driver Insurance

Keithd1985

New Member
I was in a ex's house and drank 2 bottles of 330ml beer. I drove home and continued to drink at another 4 beer and half a 750ml bottle of spirits. I was in home about an hour when the police knocked saying they had a report I was drink driving and breathalysed me arrested me and breathalysed me again in the police station where I had a reading of 93 of breath. Ive been charged but there's no way I was that high when I drove home. Can I be prosecuted for this.
 
What report did the police have of you drinking, and did it include the manner of your driving?
What was your reading if they put you on the hand held breath test machine at home?
Did you tell the police at the time that you had been drinking back at home and how much you had?
If so, Did they see / seize the said bottles / cans?
Were there any witnesses to you drinking at home?
Did they interview you and get your account on tape and ask you your height weight etc?

As the solicitor has said on the other part, the law says that what was in your system when you were breath tested IS what was in your system when you drove. If your defence is that you consumed an amount after driving that made the difference to being over the limit, it is for you to satisfy the court, on the balance of probability, that you did consume alcohol after driving, AND that it made the difference to you being over the legal limit.
This will involve commissioning an experts report (Cost about £300) and putting this forward to present your case. Whilst this migh ‘prove’ that you were under the limit when you drove, it is only based on what you told the expert, so it will hinge on how credible you present as a witness and any supporting evidence that you have.
It is open to the prosecution to get their own experts report to rebut this and if you lose they will claim the cost of this back from you. Prosecution costs of £85 for a guilty plea rise to £620 for a not guilty plea (only if convicted of course) and you will lose the 1/3rd discount on the fine offered for a guilty plea.
You will need to instruct a solicitor for this, it is not really something you can do yourself. This is likely to start at £3000 plus every expense they incur (plus VAT) as you need to use one who has good knowledge of drink driving procedure.
 
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What report did the police have of you drinking, and did it include the manner of your driving?
What was your reading if they put you on the hand held breath test machine at home?
Did you tell the police at the time that you had been drinking back at home and how much you had?
If so, Did they see / seize the said bottles / cans?
Were there any witnesses to you drinking at home?
Did they interview you and get your account on tape and ask you your height weight etc?

As the solicitor has said on the other part, the law says that what was in your system when you were breath tested IS what was in your system when you drove. If your defence is that you consumed an amount after driving that made the difference to being over the limit, it is for you to satisfy the court, on the balance of probability, that you did consume alcohol after driving, AND that it made the difference to you being over the legal limit.
This will involve commissioning an experts report (Cost about £300) and putting this forward to present your case. Whilst this migh ‘prove’ that you were under the limit when you drove, it is only based on what you told the expert, so it will hinge on how credible you present as a witness and any supporting evidence that you have.
It is open to the prosecution to get their own experts report to rebut this and if you lose they will claim the cost of this back from you. Prosecution costs of £85 for a guilty plea rise to £620 for a not guilty plea (only if convicted of course) and you will lose the 1/3rd discount on the fine offered for a guilty plea.
You will need to instruct a solicitor for this, it is not really something you can do yourself. This is likely to start at £3000 plus every expense they incur (plus VAT) as you need to use one who has good knowledge of drink driving procedure.
I can confirm that this is almost identical to the situation I found myself in.
I can't recall the exact amount i drank at home. However, the police were there to witness some of the alcohol consumption at home. I also received the consumption report from the medical experts that confirmed the timescale and alcohol consumption that agreed with the breathalyser in the police station (I think my reading was 94 in the station).
I raised the hip flask defence with an experienced Drink Drive solicitor in a magistrates court, which was found to be unacceptable to the court.
In my experience, unless you have very credible evidence and witnesses to prove that you were under at the time of the offence (perhaps video and receipts from a bar/restaurant. Eg. A barman's statement that he only served you 2 x 330 bottles and a till receipt to prove against your bank statement etc...) It is a very hard defence to raise.
I have the feeling that the court have many people racing home after the fact and then consuming quite a lot of alcohol. I am not making any comment about your alcohol consumption, but to a magistrate the idea of getting home and drinking 4 beers and half a bottle of spirits in 45 minutes is quite a difficult one to grasp.
My experience is that i felt i had quite a strong case to raise the hipflask defence. The court rejected it and i walked out of court with a 20 month ban, a very large fine and an even larger solicitor fee.
 
I can confirm that this is almost identical to the situation I found myself in.
I can't recall the exact amount i drank at home. However, the police were there to witness some of the alcohol consumption at home. I also received the consumption report from the medical experts that confirmed the timescale and alcohol consumption that agreed with the breathalyser in the police station (I think my reading was 94 in the station).
I raised the hip flask defence with an experienced Drink Drive solicitor in a magistrates court, which was found to be unacceptable to the court.
In my experience, unless you have very credible evidence and witnesses to prove that you were under at the time of the offence (perhaps video and receipts from a bar/restaurant. Eg. A barman's statement that he only served you 2 x 330 bottles and a till receipt to prove against your bank statement etc...) It is a very hard defence to raise.
I have the feeling that the court have many people racing home after the fact and then consuming quite a lot of alcohol. I am not making any comment about your alcohol consumption, but to a magistrate the idea of getting home and drinking 4 beers and half a bottle of spirits in 45 minutes is quite a difficult one to grasp.
My experience is that i felt i had quite a strong case to raise the hipflask defence. The court rejected it and i walked out of court with a 20 month ban, a very large fine and an even larger solicitor fee.
However, i would add that if I were to have my time again... i would try and get the CPS to agree to a guilty plea with all the reductions. I would also ask them to agree that breathalyser result was over 87.5 due to post drive consumption and to try and get that magic number down in order that i was not classed as an HRO. There are more experienced posters who could advise how best to do this.
 
What report did the police have of you drinking, and did it include the manner of your driving?
What was your reading if they put you on the hand held breath test machine at home?
Did you tell the police at the time that you had been drinking back at home and how much you had?
If so, Did they see / seize the said bottles / cans?
Were there any witnesses to you drinking at home?
Did they interview you and get your account on tape and ask you your height weight etc?

As the solicitor has said on the other part, the law says that what was in your system when you were breath tested IS what was in your system when you drove. If your defence is that you consumed an amount after driving that made the difference to being over the limit, it is for you to satisfy the court, on the balance of probability, that you did consume alcohol after driving, AND that it made the difference to you being over the legal limit.
This will involve commissioning an experts report (Cost about £300) and putting this forward to present your case. Whilst this migh ‘prove’ that you were under the limit when you drove, it is only based on what you told the expert, so it will hinge on how credible you present as a witness and any supporting evidence that you have.
It is open to the prosecution to get their own experts report to rebut this and if you lose they will claim the cost of this back from you. Prosecution costs of £85 for a guilty plea rise to £620 for a not guilty plea (only if convicted of course) and you will lose the 1/3rd discount on the fine offered for a guilty plea.
You will need to instruct a solicitor for this, it is not really something you can do yourself. This is likely to start at £3000 plus every expense they incur (plus VAT) as you need to use one who has good knowledge of drink driving procedure.
No they didn't have a report about the manner of my driving it was a simple report I drank and drove. The police didn't say what my breath reading was just that I was over the limit. Yes I did tell the police I had been drinking at home and they said they had to arrest me as I blew over the limit and they had a complaint. They didn't see or seize any alcohol from my home as I took them to the living room and I had been drinking in the Kitchen. My mother and father were in the house at the time I arrived and as I was drinking to witness I was not under the influence when I arrived home. Yes they asked my height and they interviewed me the next morning but my duty solicitor recommended I say "no comment" to everything so I did as he said.
 
Your solicitor does not seem to have given you good advice, unless he thinks they do not have enough evidence of you driving? Did you and not that you had driven home when the police arrived? If so, they have the evidence they need, and your solicitor should have advised you to disclose what you drank at home To advance your defence.
What did you answer what the police asked you as part of the breath test procedure. “Have you, since the time of the alleged offence, consumed any alcohol?”
Unless you stopped somewhere on the way home, it seems that the report that you were drink driving came from your ex. If that was the case, it was pointless her ringing to report this to the police if you had not drunk enough to be over the limit, how did she know that you were going back home and drinking enough to put you over the limit? Good guess?
Your problem is that what you say you drank, against what your reading was at the police station, do not stack up. You can pay for a technical report to confirm this if you are going down the not guilty route.
TPR has given you the best advice, try to get the agreed level to below 88 to avoid the HRO label. You will also be in the lower sentencing bracket than a reading of 93.
 
Your solicitor does not seem to have given you good advice, unless he thinks they do not have enough evidence of you driving? Did you and not that you had driven home when the police arrived? If so, they have the evidence they need, and your solicitor should have advised you to disclose what you drank at home To advance your defence.
What did you answer what the police asked you as part of the breath test procedure. “Have you, since the time of the alleged offence, consumed any alcohol?”
Unless you stopped somewhere on the way home, it seems that the report that you were drink driving came from your ex. If that was the case, it was pointless her ringing to report this to the police if you had not drunk enough to be over the limit, how did she know that you were going back home and drinking enough to put you over the limit? Good guess?
Your problem is that what you say you drank, against what your reading was at the police station, do not stack up. You can pay for a technical report to confirm this if you are going down the not guilty route.
TPR has given you the best advice, try to get the agreed level to below 88 to avoid the HRO label. You will also be in the lower sentencing bracket than a reading of 93.
Yes it was my ex as the police read her name and address out on the version of events in the interview. And yes she knew I was going over to drink. No I didn't stop off on my way home and I literally only live two roads away. My solicitor is waiting to get the paperwork from the 1st court sitting to find out more.
 
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Yes it was my ex as the police read her name and address out on the version of events in the interview. And yes she knew I was going over to drink. No I didn't stop off on my way home and I literally only live two roads away. My solicitor is waiting to get the paperwork from the 1st court sitting to find out more.
There was one statement to police but since then that statement has been withdrawn
 
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There was one statement to police but since then that statement has been withdrawn
It may have been ‘withdrawn’, but it does not stop it being put in evidence.
Good luck with your case. Let us know how you get on. Read other cases on here where people have spent a fortune on similar cases and still lost...... and I still say your figures do not add up. I have considerable experience in this, but am not an ‘expert’ though.
 
Strange law and an interesting thread. What is to stop anyone phoning the police and reporting someone for drink driving when they have not done so and imagine if your at home consuming alcohol when the police turn up. Christ anyone with a grudge could do it.
 
Strange law and an interesting thread. What is to stop anyone phoning the police and reporting someone for drink driving when they have not done so and imagine if your at home consuming alcohol when the police turn up. Christ anyone with a grudge could do it.
Exactly what this is. And think its completely unbalanced that I be accused of being way over the limit when I wasn't. Its like going for dinner and telling the other person your going home to celebrate something. Then a couple of hours later they decide to ring the police and say you were driving and next thing there's trouble
 
Exactly what this is. And think its completely unbalanced that I be accused of being way over the limit when I wasn't. Its like going for dinner and telling the other person your going home to celebrate something. Then a couple of hours later they decide to ring the police and say you were driving and next thing there's trouble
2 and 2 make 4 not 5 which is what this situation seems to be. Innocent until proven guilty but how can that be the case here.My comment is only related to this thread but if you refuse to give a breath test or deny driving seems your classed as guilty in the eyes of the law if someone reports you even though you may not have been anywhere near a vehicle.
 
I would have thought that the Police would look for further evidence in the form of CCTV, other witnesses or even from the person admitting that they were driving. Once it is established that you were driving, it is then down to you to prove that you were sober when driving and also prove that you consumed alcohol when you arrived home. The magistrates are not mugs and will look at the 'hip flask' defence in detail. Someone saying they had 2 bottles of beer, drove and then within less than an hour drinking 4 more beers and half a bottle of spirits in the kitchen while their parents were in the other room seems very implausible, and a tad convenient. By working the back calculation they can work out what the level of alcohol was in the blood at the time of driving IF there is sufficient evidence that alcohol was consumed after returning home. Alcohol will enter the bloodstream pretty much at a specific rate so they calculate a relatively accurate level if they have to.

As Price mentions, this is really in the realms of a specialist solicitor to try and obtain the relevant report and argue the case if there is sufficient evidence. I presume your solicitor has suggested you go down the not guilty route and has said that there is a good chance that you can fight it? If you read through the different threads in this forum you will see many cases where people have been 'persuaded' to go not guilty (which then attracts higher legal costs, higher court fees and ultimately higher sentences) and the solicitor then goes on a fishing trip to try to discredit the Police procedure. Generally these trips are pointless and the solicitor suggests on the day of the trial that you now go guilty.

TPR had described going through a similar situation and I think the advice to admit guilt but to try and get the CPS to agree a lower reading to take you below 87.5 so you don't become a HRO seems intelligent given the facts as you have presented.
 
All these similar cases do raise the question: Why does the Law assume someone who had been driving earlier, arrived home and had a few drinks later must have been under the influence when they were driving? Technically, millions of people could be prosecuted if they had a large glass of wine after they got in from work if someone didn't like them or their driving and made a false allegation about them.
 
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I agree with 4 cans and half a bottle of spirits in an hour is a bit ott. It can happen i dare say but not really a defence
 
I agree with 4 cans and half a bottle of spirits in an hour is a bit ott. It can happen i dare say but not really a defence
I would suggest that offering a defence of 4 cans and 1/2 a bottle in 45 mins would be viewed fairly dimly by a magistrate. I don’t mean to be unkind, but it doesn’t seem a rational amount to drink in the normal passage of an evening. Ie. I went to a friends house, had 2 small cans of lager... all was well, drove home and then consumed almost 3 pints and 6 doubles in less than an hour. I’m sure people do it, but to a straight laced magistrate this would come across as extreme.
The difference from my case and Keith’s case being - there was a witness to my driving. I believe that the crux of the offence is two fold. One is that the person was observed to be driving, and secondly, that person was over the prescribed limit. It’s quite clear that the second leg of the offence has been breached.(in the fact that it’s a strict liability offence-and the reading was 93). I wonder whether, in fact, whether the first can be proved.
This would depend on witness statements/ possible cctv / Keith’s comments to the police in their interactions.
 
I would suggest that offering a defence of 4 cans and 1/2 a bottle in 45 mins would be viewed fairly dimly by a magistrate. I don’t mean to be unkind, but it doesn’t seem a rational amount to drink in the normal passage of an evening. Ie. I went to a friends house, had 2 small cans of lager... all was well, drove home and then consumed almost 3 pints and 6 doubles in less than an hour. I’m sure people do it, but to a straight laced magistrate this would come across as extreme.
The difference from my case and Keith’s case being - there was a witness to my driving. I believe that the crux of the offence is two fold. One is that the person was observed to be driving, and secondly, that person was over the prescribed limit. It’s quite clear that the second leg of the offence has been breached.(in the fact that it’s a strict liability offence-and the reading was 93). I wonder whether, in fact, whether the first can be proved.
This would depend on witness statements/ possible cctv / Keith’s comments to the police in their interactions.
Over the weekend, I will dig out my formedecon report (the expert witness back calculation form) and take out the personal information. It will be useful for people to see the level of detail that is required for this process. It really isn’t a case of “I had a couple of pints at about 7pm”. It is extremely exact - down to the smallest detail. And even then, without objective corroboration from witnesses, is only one small part of a defence.
 
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