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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 71153
Experience:  Over 5 years in practice
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I have been charged with "drive a motor vehicle when alcohol

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Hi - I have been charged with "drive a motor vehicle when alcohol level above limit ---This Offence carries Penalty Points" & "drove a motor vehicle , after consuming so much alcohol that the proportion of it in your breath, namely 108 mic. of alcohol in 100 mill. of breath, exceeded the prescribed limit"
I was arrested about 500 yards away from my vehicle on the street and failed the breath test.
I am confused why I have at the most not been charged with being over the limit whilst "in charge of the vehicle".
They have plenty of evidence that I have a drink problem, bought vodka etc during the day through CCTV at local supermarket. I was also breath tested a few weeks ago and the reading stated "warning" so I was just under the limit and allowed to drive home.
I have 6 points on my license currently (2 X 30mph speeding) and never been arrested before.
My vehicle was left parked at the time due to a wheel puncture which I told the officers is why I was walking with my suitcase to find a hotel. I of course had my keys on me.
The officers after arresting me drove back to my car and took pictures of the puncture.
When charged the next day I was told I am banned for 2 weeks until my court case and the worst that will happen is I will be banned (I don't know if this is a ploy to get me to plead guilty).
What do you think as I think the above charge is strange given the circumstances.
Thank you for your question. My name is ***** ***** I will try to help with this.
Are you asking if you will be convicted?
Customer: replied 2 years ago.

Hi - I am asking several things, firstly the charge of driving a vehicle when I was arrested away from the vehicle seems wrong, but of course the end question is will I be convicted or is there a strong case.

Sorry if I am missing the point but what is wrong about it?
Or are you seeking to rely on the fact that you weren't actually found in the vehicle?
Customer: replied 2 years ago.

Yes that is correct, how can I be charged with driving the vehicle whilst over the limit when I was not in the vehicle when they found me.

I think probably because they are saying they can prove it in other ways.
In fairness, if you were found close by and no evidence of recent consumption exists then probably that alone would support the allegation as you must have driven there.
There also must have been some reason that they were alerted to this vehicle. If they are relying on evidence that you were seen driving that would be sufficient.
They don't have to find a person in the vehicle to prosecute drink driving.
In terms of the sentence, it does depend on your previous but given the reading is very high Im afraid I would brace yourself for being at risk of custody. If you have not relevant previous then probably you would avoid it in favour of a suspended sentence. If you do have relevant previous then it could be a short custodial sentence I'm afraid.
There will certainly be a ban. If you have another drink driving offence in 10 years then that will attract the higher periods
Truth is though, given this reading the DVLA would probably revoke anyway sadly.
Im very sorry but I have to give you truthful information.
Can I clarify anything for you?
Customer: replied 2 years ago.

Thank you, ***** ***** say I have not been arrested before this. When you say relevant previous do you mean previous conviction in court of the same offence?

Yes, or anything else relating to alcohol but if you have no drink driving offences at least the higher ban periods are not triggered.
Customer: replied 2 years ago.

Oh in answer to your other point, what triggered the police was a call from a member of the public saying they saw me stumbling around the vehicle appearing drunk, but they did not see me drive there.

Does this change any assessment of your answer just to be clear.

Not really.
It obviously would be a better case if they had found you in the vehicle but they could rely on the very strong inference that you must have driven it there.
It might be worth a challenge. It depends whether you can truthfully deny driving it there.
I was just making the point that there was enough evidence to charge. Whether there is enough to convict is another matter.
Customer: replied 2 years ago.

Thank you, ***** ***** is extremely useful for me.

I did drive it there, I had to park because of a puncture which the police took a photo of, I then consumed a lot of alcohol in the vehicle whilst parked before deciding to walk away to find a hotel. The point of the puncture is also evidence that I could not have the ability to drive the vehicle later.

So my final questions do you think there is enough evidence to convict?

Do you think it is highly unlikely they would give a custodial sentence based on no previous?

What likely ban period do you think they would give?

Can they add a fine onto of that?

Have your answers to the above been based on me pleading guilty?

If I plead not guilty can the consequences be more severe?

I wouldn't know whether they have enough evidence to convict. I haven't had vision of it.
The defence you are raising is called the hip flask defence and it has too basic problems. The first is that the empty bottles or cans should be recovered from the vehicle. The second is that for this reading they WOULD do a BAC calculation which is going to reveal when it was consumed. Also, there is always a difficulty with getting Magistrates to accept that an automatic reaction to an incident like this is to consume lots of alcohol and it isn't really consistent with the evidence of the eye witness.
If this is 108 in breath then it is going to be 23-28 months ban.
You really need to take face to face legal advice who can commit upon the strength of the evidence before entering pleas.
Yes, you could lose credit for a guilty plea if you lose after trial.
Customer: replied 2 years ago.

Yes I plan on seeing a solicitor and getting a copy of the interview. Your advise is my starting point.

Sorry you missed 2 of my above final questions:

Do you think it is highly unlikely they would give a custodial sentence based on no previous?

And can they also impose a large fine ontop of the ban or typically do they just go with a ban?

No, they will find a way around custody on a first offence even with a high reading.
There will be a financial cost from court cost of £85, the court charge of £180 and the victim surcharge of about £50 but they won't fine in addition. It is too serious for that.
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