Drink Driving In Scotland : Is There A Legal Defense?


by Rebeccalim - Date: 2008-07-26 - Word Count: 806 Share This!

Prosecutions under s.5(1)(a) and (b) of the Road Traffic Act 1988 are complicated and it would be impossible to detail all the possible angles and defenses that may require to be investigated. This article will attempt to highlight some of the more common issues that should be addressed if you are facing a charge of drink driving in Scotland.

Under s.5(1)(a) it is an offense if a person drives or attempts to drive a motor vehicle on a road or other public place after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit. The prescribed limited¯ is defined by s.11(2) as 35ug of alcohol in 100ml of breath, 80mg of alcohol in 100ml of blood or 107mg of alcohol in 100ml of urine.

The first issue I would like to point out is that the Crown will not initiate proceedings on the basis of breath-alcohol readings of less than 40ug. Although technically the police are entitled to proceed, the Crown are personally prosecuting the case by virtue of an agreement between the Crown Agent and the Law Society of Scotland. Rather unfairly in my view, there is no similar agreement for specimens of blood or urine. So if you are charged with drink driving in Scotland with a blood-alcohol reading of 81mg, then you better get some good advice from a road traffic expert because the Crown, in all probability, be will initiate proceedings.

The Intoximeter EC/IR is the main device used in Scots law for the analysis of breath samples. It has full type approval under section 7(1)(a) and is recognised as such as a matter of judicial knowledge. It very rarely, however, produces identical readings which will be of a concern to the person accused of drink driving.

Type approval dictates that if the variation between the two samples of breath vary in excess of 15% then the readings are inadmissible and some other procedure will presumably be invoked. Furthermore if an accused's reading is less than 50ug/100ml or less then s.8(2)ug then the police will require to explain that the person may claim that specimen should be replaced by either blood or urine. This provision takes into account the variations that can be produced by the Intoximeter EC/IR and again will no give the public a great deal of confidence in the prosecution of drink driving cases in Scotland.

My advice is that an alternative sample should always be provided. There are a number of technical reasons for this although, to put it very simply, an accused person has nothing to lose at this stage by doing so. Interestingly, it has been suggested to me by clients I have defended that the police have tried to dissuade them from the alternative sample route. Please be aware that where improper pressure is exerted on an accused not to exercise his option to provide a specimen for laboratory analysis then this will result in an acquittal. Again the services of an expert motoring lawyer are essential in these circumstances.

I would also advise that the independent analysis of samples is undertaken. There are strict time limits that apply due to the degradation principle and, again, advice should be sought at the earliest opportunity. Clearly a degree of expense will be incurred by instructing an independent analysis although it could be the best money you have ever spent.

It is also essential to look at the constituent elements of the charge: namely the concepts of driving/in charge and public place/road. There is a vast amount of legal authority on these subjects and these lines of defence should be investigated.

There is also the defence of 'post-incident' drinking. This is loosely referred to as the 'hip-flask' defence and means that the alcohol that has lead the prescribed limit to be exceeded was consumed after the act of driving. This is a statutory defence and will require to be properly stated in Court with a toxicology report detailing an expert's view on the expected alcohol reading at the time of driving. These cases can be complicated and detailed instruction from the client is essential.

These are the very basics and I hope I have given at least a starting point to those who are facing charges of drink driving in Scotland. Expert advice should be sought on this highly technical and specialised area of law. Even in cases where you may think there is no hope, there can be unexpected technical defences and it is imperative that the case is properly examined to ensure a plea of guilty is not tendered to a charge that will never prove.

Michael Lyon is a specialist motoring lawyer based in Glasgow. The Firm undertakes the defence of all types of Road Traffic Cases in Scotland. Expert representation provided in all Courts including Glasgow, Perth, Dumfries, Selkirk, Stonehaven, Aberdeen, Kilmarnock and Paisley.

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This article is written by Michael Lyon. For more articles regarding Motoring Law, visit Motoring Solicitors

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