Drink driving different readings

[KC1]

My partner lost control of his car on a bend on a country road. No other vehicle was involved but some damage to a hedge/fence. Another car witnessed the incident and phoned the police. He was breathalysed at the road size with a reading of 80. When at the custody suite he then got a reading of 121 this was about 1 hour after the incident. He suffers from acid reflux and we have read this can cause a false reading. He drank 2 large glasses of white wine, (free pour). So a reading of 80 seems correct but not 121. Where do you think we stand trying to get the lower reading used in court? He has no previous convictions and had a clean driving licence. Thanks.

 

[Xeronema]

Hey KC1, welcome to the forum.

I'd like to start by saying that I sympathise with you and your partner. I'm not a solicitor so I don't know exactly how you'd go about challenging the reading taken on the lion intoxilyzer at the police station. I do have a few questions that may help others to answer your question(s), if you don't mind answering them?

Did your partner tell the police officer (custody officer) that he suffers from acid reflux and that he felt that the reading was not correct?
Is acid reflux a medical condition that your partner's GP knows about and is treating him for?

Even if you answer yes to both questions, I'm still not sure that you've got any chance of getting the outcome you're looking for, as the roadside test isn't admissible in court, so I can't see how they could go by that reading. They only have one ready to go by, and that's 121.

My advice would be to ask your question in the following section of this forum: https://www.forum.drinkdriving.org/forums/free-legal-advice-drink-driving-england-wales.52/

Martin Hammond should be able to give you a better indication of just how difficult it is going to be. I do know that if it is something that you can beat, it's going to be costly. It's worth asking him.

I wish you the best of luck.

 

[Bad_karma]

Drink driving is a strict liability offence - this means that if you are found to have alcohol above the prescribed limit you are guilty of the offence.

You will not be able to dismiss or challenge either the charge or evidential reading because you have read online that acid reflux affects samples. In the overwhelming majority of cases the machine would detect this anomaly - that’s why they use these big expensive machines and not the tiny ones at the side of the road because they are so advanced. In the very small number of cases where it may not, acid reflux alone is unlikely to put you over the limit and certainly nowhere near as high as 121. If you were disputing it you would need extensive medical evidence he suffers from chronic acid reflux, proof he was suffering from it at the time (most likely informing the police when they asked him was he well in custody) as well as proof the amount of alcohol he drank would not have put him over the drink drive limit - the last point is impossible by your own admission.

My advice would be to instruct a solicitor. You have no basis to plead not guilty but a skilled legal officer may (depending on the extent of his condition as well as the other contexts around his test) be able to introduce it as part of his guilty plea. Although if he decides to represent himself I would advise you not to do this, as the manner in which he does it has a high likelihood of pissing off the court and being interpreted as lacking insight into what he’s done. It’s a very complex matter which, if raised, will need to be done skilfully by a professional

 

[TCB1989]

The lower reading in custody will be used the evidential roadside test is NOT used, its merely a guideline to say whether the defendant is over or not, the actual readings taken to the courts are the ones blown at the station, usually two and the lower of the two readings is used in court.

In all honesty, acid reflux wont cause a breath reading of 121, and my thoughts reading 80 at roadside to 1 hour later being 121, they must have been LARGE glasses of wine to elevate to that level as well as something else, 121 is an extremely high breath reading and highly doubt that 2 "free poured" glasses of wine would cause a breath reading this high.

I would firstly be asking your partner if they had anything else to drink, or an additional glass of wine (or 2) to reach that height, i mean this with the greatest respect when in custody you are asked if you have used products such as mouthwash that may affect the score, did your partner say what the other breathe reading was alongside the 121, two breath samples are normally.

 

[Hobgoblin]

It is possible for someone's alcohol levels to be rising if they've recently drunk alcohol before driving, which may explain why the intoximeter readings were higher.