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Threat quencher
Page 32
Page 33
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A positive roadside breath sample does not always lead to prosecution. It is important to know your rights when taken to the police station, says transport lawyer Tim Ridyard.
For an HGV driver the driving licence is a vital tool of the job and pleading guilty to driving with excess alcohol can mean a minimum 12-month driving ban, a fine, jail or losing your job.
Whether driving a truck or a car the best advice is for a driver to completely abstain from drinking alcohol, but that is to deny reality. A driver may have alcohol in their bloodstream from the night before.
So, if arrested what is the best way forward? Drivers frequently adopt the wrong procedure in the police station and unnecessarily plead guilty to offences when there may be a defence. If you do find yourself being investigated by the police then it is at least wise to make the best of a difficult situation. There are a number of different drink-drive related offences, but the main one will involve the police suggesting a driver has driven or attempted to drive a vehicle in a public place under the influence of alcohol and this can include areas which seem 'private' but are in fact 'public' for legal purposes.
If a police officer suspects that a driver has consumed alcohol the officer may request a roadside breath sample. Suspicion may arise simply because the driver admits he has had some alcohol or has an intoxicated appearance or smell. The officer will request a breath sample at the roadside which will show if the driver may be over the legal limit. If it appears that the driver may be over the legal limit,he or she will be arrested and taken to the police station where a further sample will be taken. Only this sample can be used for court purposes — not the roadside one which is only a screening sample. Once at the police station the driver will be booked in, have legal rights explained and be breathalysed on the Lion Intoximeter machine.Two samples of breath must be given by blowing into a mouthpiece and a printout will show if the legal limit of 35mg of alcohol per 100m1 of breath has been exceeded.
Other samples
If the lower of the two samples does not exceed 50mg/100m1 the driver has the right to replace it with one of blood or urine. The police choose which, but, subj ect to any medical problems. the driver may have, it is normally blood.
The driver should opt to give a different sample because there is the possibility of escap ing prosecution altogether. This is because there will be some delay before a doctor can be found to take a blood sample and the blood is sent off for analysis; then the lab deducts a small part of any alcohol found as a safety margin.
This can mean that a driver may escape prosecution, particularly as police forces do not prosecute drivers if they are only slightly over the 35mg/100m1 limit, for example between 35 and 40mW100m1.
Many drivers decline to give an alternative specimen at the police station and lose any chance of possibly avoiding prosecution.
After a driver has been booked in at the police station the police will complete a Lion Intoximeter booklet.They will ask how recently alcohol has been consumed and whether the driver has any medical conditions. It is absolutely vital that the best, correct information is given to the police. Sometimes drivers have genuine, serious respiratory problems which makes it very difficult to blow into the Lion Intoximeter machine.
If a driver does not provide samples he may be guilty of the offence of failing to provide without reasonable excuse and the penalty for this is the same as for driving with excess alcohol. The purpose of this is to stop drivers deliberately refusing to give breath specimens in order to avoid prosecution. In fact, the Magistrates' sentencing recommendation is for a minimum 18-month ban for those who refuse to give specimens.
Fined and banned
In the unhappy event that there is a prosecution the court will normally impose a fine and must disqualify the driver, except in the most exceptional cases in very unusual circumstances. The minimum disqualification period is 12 months and increases as the alcohol level rises. Between 85 to 115mg/100m1, the court will consider other sanctions such as community penalties, while at 115mg/100m1 and above (if not just below) a prison sentence will be considered.
At court a driver can agree to go on a drink drive rehabilitation course, which may result in the ban being cut by up to a quarter. However, the driver must agree in court to attend the course and actually carry it out in order for the ban to be shortened.The Magistrates' Sentencing Guidelines specifically state that if a driver has passengers or is driving an I IG V then this is an aggravating factor. •