Drinking Age

Graham Walker asked:


Drink Driving -Procedure

Drink driving is a complex and serious area of law therefore we offer FREE online advice in relation to such cases. Accused of being a Drink/driver then ask us about your own case right now! People can and do, go to prison for committing this offence therefore we strongly urge you to seek legal representation as soon as possible. Ask a lawyer about your own case now.

The procedure normally starts with the police pulling your car over for a check or after you have been involved in a road traffic accident. You can pretty well always exact to be breathalysed if you have been in any road traffic accident around Christmas time.

You will first be tested with the handheld intoximeter device. Although the reading from this machine will not be used in evidence if you fail then the next stop will be the police office. you will be brought before the police station duty officer and the officer will be informed that you are suspected of drink driving and the EC/IR Intoximeter device will require to be used. You will then be taken to the “Intoximeter” room where the breath analysis will be taken. You will be shown the machine and asked to blow into the device. (It surprises most people that you require to blow for several seconds and blowing consistently can seem difficult”

If you fail then you will be given a copy of the print out. It looks like a till receipt. you should keep this. You may then be kept in custody until the duty officer deems you fit to drive. Normally the next day before you are released from the police station and often a further intoximeter test is done before you leave the office.

The police will give you a “Pink form” called a “Bail Undertaking” this provides a date and time for you to attend at your local court where your case will call for the first time.

When you attend court a duty solicitor will be present and he/she should have a few minutes with you prior to your court appearance. We would strongly advise you to seek out the services of a solicitor BEFORE you attend court. Needless to say we suggest you contact us or another firm of specialist road traffic lawyers.

A duty solicitor will be at court however he/she is there for people who cannot afford a solicitor and will require Legal Aid. You will most likely discover that you do not qualify for Legal Aid.

In busy courts such as Glasgow there can easily be up to 150 people appearing in the same court on that day and the duty solicitor will have approx. 1 hour to see the majority of them. it is therefore very important that you consider contacting a road traffic lawyer as soon as possible.

When your case is called you will go forward to the “dock” and the clerk of court will ask you to confirm your name and address. If you have a lawyer he/she will tender the plea at this stage. If a guilty plea is tendered you can expect to be disqualified for at least 1 year and if you have been been convicted of a similar offence in the past 10 years then expect to be disqualified for 3 years minimum.

If you plead Not Guilty the court will set dates for a Trial and an Intermediate Diet (Formal court appearance to check case is prepared) You must then return to court on both of these dates.

Your solicitor will then obtain a list of witnesses from the Procurator fiscal and start to prepare your defence. you should contact your solicitor at least two weeks prior to the Intermediate diet to go over the case preparations and discuss your case again. If your case involves a report from an expert such as a forensic toxicologist then you may incur added expense and should liase with your solicitor regarding same from the outset of your case to ensure that he/she is provided with all the information that is required.



Gregory

Steve Dahl asked:


As an adult you know you did plenty of stupid things when you were a teen. Maybe that’s why teen drinking is a growing problem. Maybe our guilt as parents prevents us from being too strict about teenage drinking. To add fuel to the fire, hundreds of times a day our children see and hear TV, radio and Internet messages that support and/or glamorize getting drunk. On TV when someone gets a raise they have a drink. When they finalize their divorce they have a drink. When they feel depressed they have a drink. When they need a few laughs they have a drink.

It’s an uphill battle for parents that want their kids to avoid the downsides of alcohol abuse. But what the heck you say, it’s just a “Right of passage.” If you rationalize letting teens drink at your house because “At least they’re not driving” then you’re asking for more trouble than you can imagine. Teenage drinking is at epidemic levels and getting worse. Not just for teens that drink but for the parents that don’t consider it a big deal.

Social host liability laws are popping up everywhere and the adults that allow or support illegal drinking even in their own home are going to make for some painful situations for parents who want to look the other way.

Furthermore, the adults don’t have to be home to be held liable. Each community may have its own laws about who is going to be held accountable for underage drinking. Jail time, fines, community service, and plenty of embarrassment are a few of the consequences but the real consequence comes when there is some accident or assault that occurs. The consequences of the latter last a lifetime.

“All states now have zero tolerance laws for people under 21 - which means, when you get behind the wheel you are breaking the law for ANY level of alcohol in your body.”

If you’re the kind of parent that likes to tie one on once in a while and don’t see any harm in letting young adults experience the joys of booze then you need a little reality check. Teenager are getting killed far too often after a few drinks and a little time behind the wheel. But our teenagers don’t necessarily suffer the consequences of poor choices all by themselves. Unfortunately, they usually take a few more victims with them. This isn’t moral preaching here, this is fact.

Let your teenagers drink and the likelihood of someone or something getting hurt goes way up. Could be a drunk-driving incident, could be alcohol abuse, could be sexual assault, and the list of wonderful side effects of being a little over-permissive go on and on.

Do a little homework in your neighborhood and check the local laws about social hosting. That’s the law that holds parents accountable who provide the place for underage drinking and/or the alcohol. If you have teens or pre-teens this might be a good time to make sure you and your children’s friend’s parents are aware of their legal and responsibilities when it comes to teens that drink at home. Here are a few things you can do as a parent when your child is going to someone else’s house for a party or just a little hang time.

1. ASK YOUR KIDS QUESTIONS. Who is going to be there? Where are the parents? Is this a boy/girl situation? What’s the occasion? Will there be any form of drinking or even the possibility of drugging going on there? (That last one is a bit blunt but it’s a good idea to teach your kids how to be direct and blunt too!)

2. CALL THE OTHER PARENTS. Yeah, you’re going to be appreciated and rejected at the same time. Other parents may not appreciate the fact that you would question them about this while other parents will be very appreciative of your inquiry.

3. SAY NO. If you have any suspicions that something is amiss, it probably is. If you don’t get a straight answer out of your kid or the other parents then say “No, it ain’t happenin’ junior!” Then, find an alternative and sponsor it yourself. “You can’t go to the party but I’ll be glad to give you and three of your friends tickets to the movies, bowling, roller skating, etc.” Offer to make a big batch of their favorite snacks and rent a few movies at your house. Get creative but get real. Saying “no” doesn’t get any easier as your teenager becomes more and more independent.

When your kids accuse you of not trusting them, let them know it is not a matter of trust when it comes to the power of drugs and alcohol, it’s a matter of facts. People do stupid things under the influence and as a parent you know the facts.

Even though you may trust your child, you cannot trust people you don’t know or the persuasive power of “group think” when there’s other influences like peer pressure and booze pressure. By the way, parents also face an awful lot of peer pressure. They want to be “cool parents” for their kids and they don’t want to be the “prudes” down the street.

4. SAY YES. If you feel things are safe then say yes. And, let your child know there are times when she has to call you and check in regardless of what the event is. Good times to check in are when they arrive, just before they leave to come home, just before bedtime (if a sleepover), etc.

If for some reason they forget to call you (and they will) then teach them that this is not acceptable and YOU pick up the phone and dial them. If they don’t answer their cell phone you might be a little suspicious. It’s a good idea to just make it a very simple rule. When your teen is away from home and you call, they better answer the phone. Of course, if your teen is in a movie theater and can’t pick up the phone or dial you they can call back when it’s over. If your kids get a little paranoid that you’re checking up on them then that’s not a bad thing.

Keep talking to other parents and make sure you let those who call you know how much you appreciate their concern. Make a pact with other parents whenever you can to check in with each other and compare notes.

5. PREPARE FOR ***** UPS. If your teenage blows it and makes a mistake it’s important to have a plan. If he gets behind the wheel of a car and he’s afraid to call you or a cab then everyone is in real danger. Start repeating this over and over to your teen. No matter when, where, or under what circumstances it happens, if you make a mistake and get into a situation where there are drugs or drinking, your parents will always come and get you anytime, anywhere with no questions asked.

If your teen is in a predicament where there is drinking taking place and she needs a way to extricate herself then give her a private code between the two of you that she can use when she calls home. She can call you and pretend to have an argument about why she should not come home. That way she can save face with her friends and maybe her life. Say this over and over because it could save some serious heartache.

If you make a habit of asking questions of your kids and their friend’s parents your kids may begin to wonder if you have eyes in the back of your head. They may be surprised to find out that you heard about so-and-so getting into trouble at the last party because your kids certainly weren’t going to share that with you. Being in-the-know is good for you and good for your kids.

Remember, your job is to keep your kids away from booze and drugs as long as possible. Studies have proven that the longer your child avoids alcohol and drugs the better chance they have of living a life free of its many painful consequences.



Cory

Darrell F asked:


In the UK the limit for drink driving is 35g of alcohol in 100ml of blood. In 2000, it was considered reducing this to just 20g per 100ml of blood however this was opposed and for the foreseeable future it seems it will remain at 35g. Usually this is equivalent to just 2 pints of mid strength alcohol however this depends on the person. For example, for petite women this may mean she is over the limit.

The police can only require you to take a breath test on 3 different scenarios. These are if the police can suspect you have committed motor traffic offence or if having stopped the officer believes you have consumed alcohol or the police were called to an accident you were involved in.

When stopped, the police officer will ask you to blow into the digital breathalyzer. If you are over the limit the device will show a red light, an amber light for having alcohol in your blood but not being over the limit and a green light for there being no alcohol present in your blood.

If the digital breathalyzer shows a red light you will be arrested and taken to the local police station. If you were stopped by a police officer on a motorbike he or she will call for transport to take you to the police station. At the police station you will have two readings taken and if there is a difference the police have to take the lower reading.

In normal circumstances the police do not prosecute for readings under 40mg. For all readings over 40mg there will usually be a sentence of 1 year’s disqualification. This sentence is rarely waived unless the accused can provide evidence of not being able to go about their job if they lose their license. Also the judge may take a few months off the sentence if the accused will attend a course on drink driving. Additionally there will be costs of between £300 - £400.

Second time offenders and those over 2.5 times the limit will be dealt with much more severely as they are classed as high risk offenders. To ensure you keep driving you may consider using Nick Freeman AKA Mr Loophole and his team of advisors.



William

Ed Philips asked:


This is a good question and the first thing that needs to happen is you must decide if you really want to take this step. Examine the information in these next few paragraphs and decide if maybe the time has come to make some changes.

Can you stop drinking?

Has drinking affected your relationships to the point where you realize that you no longer have any stable relationships?

Has your spouse or partner decided to call it quits or asked you to move out?

Maybe this person has threatened to leave you.

Do your children know that there is something wrong with the way you act when you have been drinking?

Are they afraid of you?

Have you ever hurt them in any way?

If you are older and have grown children do they avoid you or prefer you not spend time with your grandchildren?

Are you estranged from any members of your family?

Are there relatives that you never see or talk to anymore because of your drinking?

Can you follow through on your obligations or promises to family members?

Can you stop drinking if you have been having a hard time at work?

Do you find it hard to concentrate or has the quality of your work been suffering?

Have you been passed over for a promotion because of your drinking?

Do you usually spend time drinking after work and find that you seldom have time for any of your coworkers who do not accompany you to the bar?

Is your health suffering because of your drinking?

Do you often feel really tired but have trouble sleeping?

Are you experiencing problems with depression or anxiety?

Do you often feel angry, sad or guilty and you are not sure why?

Can you stop drinking if you come to terms with the fact that your drinking is causing health issues?

How is your financial situation?

Do you find that you are sometimes not able to pay your bills or you are behind on payments?

Do you owe attorneys money because of legal problems due to your misuse of alcohol?

Have you stopped and added up all the money you are spending each week because of your alcohol addiction?

Are you having legal problems because of drinking?

Is it possible that you have been drinking and driving and face time in jail?

Have you injured someone because of drinking and driving? Have you needed to hire an attorney?

Are you in danger of losing your license?

Will you need to appear in court?

How many times could you have been stopped for drinking and driving?

Now stop and think about how many times you could have been stopped for traffic violations after drinking and driving but you managed you avoid the police?

Can you stop drinking? If the above scenarios describe you maybe you should seriously think about doing something about it.

Stop drinking and improve your relationships, your health, your job situation, and your financial and legal problems.



Danny

Graham Walker asked:


POST-INCIDENT DRINKING OR THE “HIP FLASK” 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 *** 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.



Matthew

Graham Walker asked:


Drink Driving Law In Scotland

Drink Driving In Scotland

This is a complex and serious area of law therefore we offer FREE online advice in relation to such cases. Ask us about your own case by going to our website at roadtrafficlaw.com

Post Incident Drinking Defence

Expert evidence on post incident drinking

Information required by your expert

Failing to provide a specimen

Procedures blood or urine samples at police stations

Requests for blood or urine samples at hospital

The breath testing equipment

Back calculations and how they operate

The Lord Advocates Directive

 

 

Post Incident Drinking Defence

There is a legal  presumption taken from section 15(2) Road Traffic Offenders Act 1988 that the proportion of alcohol in a drivers breath, blood or urine at the time of the alleged offence was not less than in the specimen.

This means that the defence require to establish the defence if the driver claims that he/she had been drinking after the incident but prior to giving a sample. Check section 15(3) - if the driver establishes the matters set out at section 15(3) on a balance of probabilities then the defence is made out and must be rebutted by the Crown case. This type of defence is common in practise but uncommon in success. It is often referred to as “The hip flask defence” coming from the term used in a case where the accused claimed that after a crash he had taken a few drinks from his hip flask to calm his nerves. Sheriffs tend to take the view nowadays that anyone who has been involved in a road traffic accident will expect to be tested and would be extremely unwise to consume any more alcohol in these circumstances. It is therefore VERY difficult to establish such a defence.

It is not impossible but will usually require the evidence of an independent forensic toxicologist  who can provide a detailed report that will hopefully support the accuseds’ explanation of the amount of alcohol consumed  and when.

The defence must call scientific evidence on the point unless it is obvious to a layperson that the post offence consumption of alcohol explained the excess. Never assume that it would be obvious, you would generally always be wise to seek out a report and to forward a copy of same to the Crown well in advance of the trial to have it agreed wherever possible. Reports normally cost in the region of £250+Vat to prepare however if you require your expert to come to court to give evidence this can be very expensive. It will depend upon the time taken for the witness to be called and to give evidence.

If a driver provides a specimen a long time after the driving offence and this proves to be below the limit the forensic experts acting for the Crown may provide a report indicating that at time of offence the blood alcohol was over the limit and therefore the driver may still be prosecuted. This is  not something that happens very often probably due to the evidential issues and difficulties n presenting the case in a fair manner.

 

The Expert evidence on post incident drinking

The expert will provide a report setting out his presumptions and the mathematical calculations used in coming to any conclusion.

To be successful you really need to provide the expert with as much accurate information as possible otherwise there will always be an element of guesswork about the process and this will work against you. Although the defence ONLY requires to be made out in the Balance of probabilities you will find that this is still a high standard. It is worth instructing a specialist law firm to assist with this whole process but however you proceed there will be a set amount of information that your expert requires. It can be worth calling the forensic department of your local University to see if they have an expert available and then ask them to fax you a list of they require. They sometimes have a form that you can use to provide the required information.

 

Basic Information Required



Full detail of any food consumed from six hours before the

offence.

Weight, height, build, age and sex

Known medical condition (Acid reflux, irritable bowel etc)

Medication taken regularly, or within 6 hours prior to drinking;

Type and quantity of alcohol consumed before the offence and, if possible, the times at which the units of alcohol were consumed. Brand names ok and provide the actual containers that the drink was consumed from eg Glass marked with the measure taken.

the same information concerning any alcohol that you consumed after the offence but before you gave the specimen for the test.



 

 

 

Failing to provide.

This is a complex area of law and there are a great many cases that have assisted us in the definition of what is and is not a “reasonable excuse”. It is not a reasonable excuse to state that you did not give a sample because you wanted your lawyer to be present. Nor is it a reasonable excuse to refuse to provide a specimen of breath or other sample simply because you had not been the driver.

The main successful area of reasonable excuse has tended to be cases where there is a genuine medical problem such as Asthma or real phobia of needles etc. Medical evidence of such a phobia or condition will require to be obtained and examined. Simply because you are asthmatic will not preclude you from providing a sample. The court will require full details about your condition and how it would affect your ability to provide a sample. Expert evidence may be required in relation to your psychological state as this could also have had a bearing on whether or not  you could commit this offence.

Once such a defence is raised, the onus is upon the Crown to prove beyond a reasonable doubt that it has failed and that you are therefore guilty of the offence.

Failing to provide a sample is a very interesting area of defence and we have had a great deal of success in defending such cases. We do not wish to publicise just how we have been successful as this is a competitive area of the law and we all guard our knowledge jealously. If you want the benefit of our success in this area pleas e call or provide us with some of your case details online.

Procedure for blood or urine samples

An area of some confusion as the motorist tends to believe that they have a choice about what type of sample is given and how and where it should be given. You will find that the police officer requesting the sample can decide what type of sample is to be used. Sections 7, 8 and 9 of the Road Traffic Act 1988  set out procedures which must be followed by the police when laboratory samples of blood or urine  are taken. Sometimes police officers fail to follow the strict guidelines that are laid out in the forms that they use as an aide memoir when following the procedure and then he defence have an opportunity to win their case!

The admissibility of those specimens in excess alcohol cases depends upon the procedures being followed strictly. The procedures are set out in this manner to secure a fair and just process that is beyond reproach.

As a suspected driver you are legally obliged to provide a sample where an officer has reasonable grounds to suspect that you have driven a vehicle whilst under the influence of drink or drugs. Do not refuse to give a sample because you were not driving or you were not driking- Bad idea to refuse as this is a separate offence. Let the lawyers sort out the presentation of the defence at court. It is best for you to cooperate fully with the testing process and procedures and simply note carefully what is being said to you and what is going on.

Before a sample is taken the driver needs to be told:



The reason why breath cannot be used as a sample;

That the officer will decide that the sample will be Blood or Urine and what it will be.

Tell you that if you refuse then this is a separate offence. I tend to think they should also tell you that you will most likely be disqualified from driving or holding a licence if you fail to provide.

If they want to take blood they require to ask about medical conditions or any reason to refuse such a specimen. (The police casualty surgeon is called out to take a sample of blood from you)



 

 

Section 8(2) of the Road Traffic Act, a driver may choose to replace a breath specimen by supplying a lab sample in the following circumstances



Where the specimen of breath exceeds the statutory limit; but does not exceed 50 microgrammes of alcohol in 100 millilitres of breath



 

 

The police officer then require to inform you



You are entitled to have this specimen replaced by a specimen of blood or urine; but it will be for the police officer to decide whether the replacement specimen is to be of blood or urine.



 

 

 



He has to check if the  driver has any medical reasons why a sample of blood cannot or should not be taken from him.



 

 

There are sometimes failings in this process and we find that we can successfully defend motorists in such cases where the police have failed in the procedure required of them.

The test of whether the officers failure has caused a fundamental breach of procedure that cannot be cured is usually a matter for the Sheriff however in circumstances where the police officer has failed to check if you have any medical condition that precludes you from giving such a sample we can safely say that we should win that point and save your driving licence.

Blood or urine samples when at hospital

Sometimes samples are taken from a driver when he/she is in the process of receiving treatment following a road traffic accident. Again this is an area of law where the prosecution require to be careful about the methods used to ensure fairness and admissibility of evidence.

The reporting police officer should ASK the driver if there is any reason that he/she cannot provide a sample of blood for analysis. Sometimes this whole process is just handed over to the police casualty surgeon or to a Doctor who is in attendance for another treatment reason. One has to consider if proper legal cautions have been provided and if all proper procedure followed.There is often room for error in the procedure and this area therefore requires careful consideration of a specialist road traffic lawyer.

The Breath Testing Equipment

The Intoximeter EC/IR, the Camic Datamaster or the Lion Intoxylizer  are used throughout the Uk we understand from experience that the Intoximeter EC/IR is now the most widely used piece of equipment for breath testing in Scotland.

They are all type approved and as such certain presumptions of reliability follow. If the defence wish to challenge the reliability iof such a device they really require to do so long before the trial!

They will require to have checked the instrument, the service log,the calibration process, the details of use on day and any other aspects of use. However they may find that the Crown are reluctant to cooperate with the defence on the basis that the whole issue of challenge is merely a “fishing expedition” for the defence.

Therefore when instructing your lawyer on this issue you must bring up the issue of device reliability if you consider it important eg If the reading seems way to high then you should explain to your lawyer what alcohol if any was consumed and why the machine must be at fault. You may require to obtain a forensic toxicologists report to validate your claim BEFORE the Crown will even allow your solicitor to obtain any details regarding the intoximeter device. If the Crown persist in their refusal to provide disclosure on this issue then other areas are open to the defence in an attempt to secure the access to documents that is required for the proper presentation of your defence. You will require an experienced defence lawyer to pursue these issues with the required vigour for success.

Breath Alcohol Less than 40ugs

In Scotland a Lord Advocate’s directive ensures that persons with a reading of 40ug or less will not be prosecuted and in England a driver will not be prosecuted under section 5 with a breath alcohol level of less than 40 ugs. In accordance with the guidelines contained in Home Office Circular 46/1983.



Russell