Last year I successfully defended a number of drivers charged with failing to provide a urine sample when required to do so by police during a drink drive investigation. It has become a specialism and these cases require a high degree of technical skill and know how.
The law is easily explained using a couple of examples, based on prosecutions I defended.
Late one afternoon police stopped a driver on a main road in Surrey because they were concerned about his driving. The officers suspected he had been drinking and as part of the investigation into whether he had actually been doing so they and required him to provide a sample of breath into a roadside screening device.
Unfortunately the officers didn’t have any devices with them in the car and had to call for another police vehicle to bring one. It took about half an hour for one to arrive after which the driver provided a positive sample, but was only just over the limit. He was at this point arrested on suspicion of drink driving.
The arresting officer decided the driver should be conveyed to a police station in a cell van rather than his police car, a decision that was never quite understood. He called for one and it took quite a while a while to arrive. By the time the driver was on his way to the police station he had been at the roadside for about an hour.
He was handcuffed placed in the cell van and off he went.
So much time had passed that he was now desperate to empty his bladder. His normal bodily functions had not put themselves on hold, and he tried to attract the attention of the driver to ask him to stop. He was ignored. As the journey progressed he could not stop himself and to his embarrassment went in the back of the van.
On arrival at the police station he immediately told the officer what had happened and apologised, explaining he simply couldn’t help himself. His apology was accepted and he was taken into the station. He knew the officers wanted him to provide further breath samples as part of the investigation. However, the first thing he did was to ask for was a cup of water. He had had nothing to drink for at least a two hours and was very thirsty.
His request was refused and he was told he had to wait whilst he was booked in. After some time, he was taken into a room where the breath test device was located. At this point it was discovered the device wasn’t working properly and so the only options available to police were to require either blood or urine. No one medically qualified was available to take blood, so it had to be urine. The officer told the motorist he had one hour to provide two separate samples, which is what the laws requires and my client said he would do his best. At this point he was provided with small plastic cups of water which he drank, and he kept on drinking. The problem for him was that he was so dehydrated that his body simply absorbed the water and produced no urine. Try as he may during that hour, he could not produce any urine, let alone two samples.
Police have to stay in the same room and being watched and reminded of the passage of time (you have 15 minutes left!) makes it more difficult at the best of times. When your body won’t produce urine, what do you do? His hour was up and that was that. He was charged with failure to provide urine.
In the Summer of 2016 a young woman was involved in an accident and turned her car over. Emergency services and police arrived and she was taken to a local hospital Accident and Emergency for a check over. Police followed the ambulance and her mother joined her at the hospital.
On arrival at the hospital she asked the officer if she could go to the ladies as she was desperate to pass urine, and he gave permission. As she was at a hospital the police could not take breath samples and so the doctor supervising her care gave permission for the police to take a sample of blood. However, a police doctor could not be found to do this. The officer decided she should provide urine, and she was given an hour to do so. The accident had made her very unwell and all the water she was given was brought straight back up and she was becoming more and more dehydrated. Her mother and a nurse accompanied her to the ladies lavatory where she was seen to try to produce urine, but she just couldn’t. Once the arbitrary hour was up, she was charged with failing to provide.
Both cases came to trial and both were found not guilty. The charge drivers face in such cases is one of failure to provide urine “without reasonable excuse”, and those words are vital. In both cases the reasonable excuse put forward was that they could not physically produce urine. Both were dehydrated and our bodies do not work to order when given an hour and no more to provide urine. Both had been seen to drink water and then to try to urinate. In both cases police knew they had urinated beforehand. When the reasonable excuse of “can’t go” is put forward the prosecution has to disprove it and that can be difficult when someone appears to have done their best in pressured and difficult circumstances.
What the court looks for is evidence of effort made too both drink and to produce, which can be as simple as standing over a toilet with a sample collecting cup ready. Courts have to accept that when the body is dehydrated it will not simply produce urine to order.
It’s that time of year again.
Pretty well every police force will shortly be starting its annual Christmas drink drive campaign, but this year it will be a little different as forces also seek to apprehend those who drive whilst under the influence of drugs.
There has long been a problem for the police, and that is the absence of a quick method of determining if a driver has drugs in his body. At the beginning of this year it was announced that police forces would have access to “spitalysers” , devices that can be used at the road side to instantly indicate if a driver has taken cannabis. The police have long been able to use breath testing devices to test for alcohol, but drug impairment has always been difficult to measure without blood samples (which take a while to test) and evidence of impairment. Whilst the devices are not going to be ready for Christmas, police are nonetheless upping their game on drug driving.
No one will condone drink or drug driving, but there does need to be an awareness of the legal framework that applies in all such cases. This year is also different for another reason; Scotland will shortly change its law to reduce the limit from 80 in blood to only 50. Drivers crossing the border might be legal in England and Wales but illegal in Scotland.
Drivers will need to be particularly aware of the side effects of prescribed drugs and those purchased over the counter. This applies to a number of pick me ups that deal with flu and cold symptoms. Earlier this year the driving limits for 8 prescribed drugs were published.
A good number of these are present in frequently used medications and drivers do need to have an awareness of this. It creates a serious problem; what to do with a driver who has taken completely legal drugs on prescription and had no knowledge he would be affected? The courts will be dealing with those who have taken illegal drugs with the sole intention of getting high, and those who have taken legal ones with the sole intention of getting better or just being able to get through the day.
Spot checks purely to determine if someone is drink driving are not strictly legal but the police need only give a simple reason for stopping or enquiring. Once engaged in conversation the police will look for glazed eyes or the smell of alcohol.
The police will bring an allegation of driving whilst unfit through drugs if they have reason to believe that you were driving a motor vehicle on a road or other public place after consuming drugs and if that your driving was impaired as a consequence. The police might have followed you for a bit and seen how you drove, or you might have been involved in an accident to which the police were called. The accident might not even have been your fault, but if you show signs that you have drugs in your body you will likely face an investigation.
Sussex Police are warning that motorists charged with drink or drug driving offences throughout December can expect to see their names published as part of a continued crackdown on offenders. They did it last year and whilst the deterrent motives are understandable, some drivers will be named and shamed who are never in fact convicted. It is understandably controversial.
Drug and drink driving are very technical areas of law with all kinds of safeguards built into the process, and inevitably some prosecutions are not successful for perfectly proper reasons.
I expect other forces to be similarly vigorous with publicity campaigns to increase awareness and to encourage reports by members of the public. In fact this year Susses is going to run its campaign jointly with Surrey. I am sure Kent and Essex will be similarly vigorous with drink and drug driving.
Something what is frequently overlooked by drivers is the effect of morning after driving, and driving after a train journey from work. The rate at which the body metabolises alcohol is easily misjudged and a heavy night’s drinking followed by an early drive to work can catch people out. The same is true with those who enjoy a drink in London after work and take a train home. Many commuter stations have police ready to check and I have represented a good many caught out. It’s a mistake to think that some sleep or strong coffee will help; they don’t get rid of the alcohol.
There was much furore recently on news that a driver in his 20's had been convicted of driving at speeds up to 149 mph on the M25 near Swanley in Kent.
The man appeared at West Kent Magistrates court in March and was banned for 6 months, fined £600 and required to pay costs and a victim surcharge amounting to £150.
The story was released by the Institute of Advanced Motorists (IAM) following a freedom of information request. Which also revealed other drivers guilty of driving significantly over the speed limit. Other cases included:
Obviously driving at these sorts of speeds is not to be condoned,. It puts other road users and the drivers themselves in danger. Fortunately stories of such excessive speed are rare.
One less publicised statistic that accompanied the report came via a freedom of information request from Radio Kent. Apparently the number of drivers issued with speeding notices in 2013 was 66,357 up from 34,438 in 2010. That’s almost twice as many motorists being caught speeding in three years.
Are the drivers of Kent driving faster or are Kent Police enforcing speed limits more aggressively?
What do you think?
At present there is no law expressly making the use of laser jammers unlawful, but a number of prosecutions arising out of their use makes it risky to use one.
The consequences can be serious.
There are many devices freely and relatively cheaply available for purchase over the internet that are said to perform a variety of functions from parking sensors to opening garage doors. Some are very sophisticated and the function can be switched by the driver.
Using one to interfere with a speed detection device being operated by a police officer could well result in an arrest and charge for perverting the course of justice.
Perverting the course of justice is a serious offence and on conviction carries life imprisonment. Long term imprisonment tends to be reserved for those who interfere with trials or investigations for example by threatening witnesses.
Nonetheless drivers using such devices to stop or interfere with police speed detection do face a Crown Court appearance and a serious risk of prison and disqualification.
I represented a client who was travelling at a speed modestly in excess of the speed limit. He approached a Traffic Officer deploying a laser device to check his speed, and on each occasion he attempted to do so the device showed “error”.
The Officer was sure something was stopping the device from registering the speed, although it did perform its normal function of recording the vehicle. The video enabled the speed of the vehicle to be checked, by working out how long it took to pass fixed points. It was easy to see the vehicle was speeding.
In this instance the police obtained a search warrant and attended my client’s home to search his vehicle. That revealed a device fitted behind the front number plate and a police expert was able to deconstruct it and demonstrate its ability to diffuse the laser beam from the speed gun.
My client was charged with perverting the course of justice and his case moved swiftly from the Magistrates to the Crown Court.
Why perverting the course of justice?
The simple answer is that there is no statutory offence committed (because there is no legislation outlawing the use of these devices) and so there is no alternative, with one minor exception. If the operator of the speed gun is a police officer an alternative might be a charge of obstructing a police officer in the course of his duty. That can be dealt with in the Magistrates Court and can be quickly over.
However there is a problem if the person operating the speed gun is not a police constable as properly defined. Many are not and are Police Support Employees with speed equipment training.
The Crown Prosecution Service or even the court may be very reluctant indeed to see a drop from perverting the course of justice to obstruction if the person obstructed was not a police constable.
What is perverting the course of justice?
The offence is committed where a person:
The course of justice includes the police investigation of a possible crime and it is not necessary for legal proceedings to have begun.
In this way it fits the use of a laser jammer.
In my case we had a very helpful Court who was prepared to view it leniently. The CPS was determined to go to trial over knowledge of what the device would do, but the Judge gave an “indication” of what he would do after a guilty plea, and my client left with a modest fine and a conditional discharge. It could have been far worse but he had good legal advice and excellent counsel.
If you plan to be one of the estimated 2.5 million UK motorists driving in mainland Europe this summer, you need to be aware of the ever lengthening list of things you must take with you and of rules and regulations that will apply in order to make your driving a pleasant experience.
According to research recently carried out by Confused.com nearly two thirds of British drivers experience some form of mishap when travelling abroad. This is a very significant figure, and the research also reveals that something like 25% of British motorists do not check that they have adequate insurance.
The cost of inadequate planning can be very high. Rescue services estimate that 25,000 UK motorists will break down while travelling in Europe and that only a small proportion will have purchased breakdown insurance. On top of that the cost of regulation is rising and the penalties for getting it wrong can be severe. You need to be aware of some old and some very new laws that will apply to you, to make your journey safe and enjoyable. Some European police can be very zealous.
All EU countries have a way of accessing driver details from DVLA and are using UK based companies to collect fines.
In all EU countries the police will issue penalty tickets and spot fines to be paid there and then. You will need cash. If you refuse to pay the penalties can ramp up very quickly.
Here are some general tips to help:
1/ Insurance: Check your insurance policy covers you to drive abroad, and include substitute drivers. It may be a statement of the obvious, but two aspects in particular need looking at. The first is the extension of the policy to cover you in the event that you have an accident that is your fault and the second is cover for car contents in the event your car is broken into.
British insurance policies are obliged to provide third party cover in EU countries but unless arrangements have been specifically made you may well not have fully comprehensive cover, making repatriation of your car for example a very expensive exercise. If you have an accident abroad and if you write off your car without having extended your cover to fully comprehensive, the expense will be substantial. So the rule is check before departure, and make a written record of anything your insurance company tells you and who you spoke with; better still send a confirmatory e mail. Most insurers now serve customers and provide information through call centres so it’s important to have some record of what you were told should something go wrong. Even if you know your policy will be extended automatically, make sure it will extend to the full period of your holiday.
It is a fact that cars bearing UK number plates are a target because there is a fair chance they contain something worth stealing, and insurers regard some parts of Europe as theft hotspots. So again check with your insurer and be aware that travel insurance may not cover items stolen from cars. The Foreign and Commonwealth Office warns of particular threats and crime trends that target foreign drivers and are worth being aware of.
2/ Breakdown Insurance: Think about European breakdown cover and obtain it if needs be. There is no legal obligation to take out such cover, but a UK based provider will pay dividends if you breakdown somewhere rural and you can’t speak the language well enough. So look at a policy that provides roadside assistance as well as multilingual help.
3/ Documents: The UK is a little more relaxed about the requirement to carry documents with you, but in Europe you may well be asked for documents. You will need to have available a full UK drivers licence not provisional, your original registration document to prove ownership and a copy of your insurance certificate. In fact in France it's compulsory to have the originals with you and so wise to take copies as well.
4/ Seat Belts: In most countries it’s compulsory to wear a seat belt front and rear, and it’s copulsary for all children up to 10 years to travel in the back seat of a car and wear a seat belt or be strapped into a proper child seat.
5/ Age Restrictions: In the UK drivers are able to use any roads from 17 years, as soon as they pass their tests. Not so in France where motorway drivers must be aged 18 and over.
6/ Mobile Phones: It is common for “hands free” systems to be compulsory for mobile telephones use while driving. It’s the same rules as in the UK but in some countries “hands free” systems with earpieces cannot be used.
7/ Satnavs: Satnavs capable of warning of the presence of speed cameras are illegal in some countries and this function must be disabled. If it can’t be disabled then the satnav must not be carried inside the car.
8/ Compulsory Equipment: Headlight beam deflectors are required just about everywhere but most countries have requirements for you to carry additional specified equipment in the car unfortunately the exact equipment required differs by country. You should always check the requirements for the country you will be visiting. The table below gives a summary based on my research but sources do differ on their interpretation of of the individual requirements of each country. To be completely sure I recommend carrying all the equipment stated. It isn’t terribly expensive, adds to safety, and will keep you out of legal trouble. Typical equipment includes:
9/ Drinking and Driving: Don’t do it. Most of Europe has stricter drink drive laws than the UK. The level is 50 micrograms rather than 80, and so two modest glasses of wine can put you over. The penalties can be severe too. In France for example they can range from a modest fine of 135 Euros for a reading of between 50 and 80 micrograms to two years in prison and 4,500 Euros in fines for readings above. If you have an accident whilst over the limit the fines go up to 30,000 Euros, and even higher up to 150,000 euros in the event of injury or death. The reason is that France has historically had a huge death toll from drinking and driving and it now comes down very hard indeed on those who ignore the rules. Best just to avoid alcohol altogether.
10/ Breathalysers: From 1 July 2012 it has been compulsory to carry self testing breathalyser kits in the car while driving in France. Two are advised in case one is used and a fine of 15 Euros will be issued after 1 November 2012.
11/ Speed: Be aware of the speed limits and the fact that police officers abroad can and will impose on the spot fines. The speed limits vary by country and even within a country they may vary in different conditions such as in wet weather or poor visibility. General speed limits can also be varied by local signage so keep your wits about you as you drive.
Speed limits are generally lower if you are towing, and may be lower if you have held a licence for less than 2 years.
Driving in much more open roads abroad can be a real joy, and a little thought and planning will make sure it stays that way.
Summary of the Key requirements:
The Judge quoted from Sir Walter Scotts’ poem Marmion as he sentenced Francis Bridgeman, a London solicitor, to 12 months in prison for perverting the course of justice. Mr Bridgeman had attempted to avoid a drink drive conviction by creating an elaborate story to cover up the offence. He insisted that he was not driving his vehicle when it came off the road, but that he had been kidnapped by armed men in the car park of Wadhurst railway station. They had driven him off in his own vehicle and then dumped him off before crashing the his Range Rover into a telegraph pole.
Police found the vehicle in a ditch and at his home later he was found to be over the drink drive limit. When his DNA was found on the airbag the story began to unravel, leading to his conviction, imprisonment and what will inevitable be a ruined career.
Whilst exhibiting an unusual degree of fabrication, Mr Bridgeman has paid a high price for what far too many people see as a way out of driving offences: get someone else to take the points.
We learned earlier this month that the Crown Prosecution Service will prosecute a charge of perverting the course of justice against Chris Huhne and his former wife Vicky Pryce. According to reports they will appear in court for the first time on the 16 February. Mr Huhne intends to defend the prosecution proclaiming his innocence. It is not known how Ms Pryce will plead.
Whilst on this occasion the charge has been brought against two high profile individuals, the Courts have dealt with a number of such cases over recent years, and they have represented an increasing determination by the police to properly identify drivers who have committed road traffic offences. A charge of perverting the course of justice is dealt with only in the Crown Court and on conviction carries a prison sentence. The consequences are far more serious than a licence endorsement or even a disqualification, and yet it happens more often than people realise. It seems so easy to have a friend or family member “take the points”, but once you have started down that route it is very difficult to go back.
In September last year a Bournemouth man was sentenced to eight weeks in prison for perverting the course of justice after claiming he was not the driver of a vehicle that was caught speeding on four separate occasions.
And in January this year two men behind a nationwide scam to help drivers escape motoring convictions were jailed at
Offences that would have been dealt with by way of a small fine and points, or the opportunity to undertake a half-day Driver Awareness Course, have resulted in prison sentences and all the consequences that flow from that.
Lying to cover up a motoring offence might look a simple way out but it isn't.