Home Drink Driving: A positive breath test, forensic evidence and a positive ID. Any chance of success?

Drink Driving: A positive breath test, forensic evidence and a positive ID. Any chance of success?

Press Release: May 19, 2015

My client was charged with three offences: driving with excess alcohol, failing to stop after an accident and failing to report an accident. My client’s car crashed into another vehicle. An eye witness apparently saw my client get out from the driver’s seat and run off. The witness called the police. My client was then arrested by the police about 15 minutes later in the location. He was breath tested and was over the limit.

My client had some cuts and bruising to his face, consistent with an air bag explosion. The police spoke to the eye witness who gave a description of my client. The police seized the car in order to test the airbag for DNA. The logic, of course, is that if the DNA matched my client then it would prove he was the driver at the time of the crash.

The police had a strong case. They had a positive breath test. They had an eye witness. They had forensic evidence. The police and CPS believed it was an open and shut case.

I represented this client from start to finish. You can’t imagine the surprise expressed by the CPS at the first court hearing when my client pleaded not guilty to all charges. The CPS solicitor looked at me like I was as mad as my client!

However, one thing I have learnt over the years is that it is vital to properly test the evidence. Just because the police or the CPS believe they have the evidence, it does not mean they have. Unless you accept the evidence and plead guilty, the CPS must prove the case based on accurate and reliable evidence to a standard beyond reasonable doubt.

When the police and CPS believe they have the right person, especially in circumstances such as in this case, I often find that the police and CPS fail to do what they should do. My defence comprised three main elements:

a. Accuracy of the breath test.
b. Identification of the driver.
c. Reliability of the forensic evidence.

Let me briefly take you through each element of my defence.

Accuracy of the breath test.

Most solicitors fail to properly challenge breath test evidence (probably because most solicitors are not experts on drink-drive law). There is a belief that if a positive breath sample has been obtained then there is nothing to challenge. This is not the way I work. I always challenge every aspect of the breath test procedure - and you’ll be surprised just how often I find mistakes with the evidence.

Most people believe (including most solicitors) that if an intoxilyser printout has been obtained (from the breath test device) showing a reading over the limit then there is nothing to challenge. The printout must be right. Right?

Wrong. The printout, by itself cannot be used on its own in evidence.

In every case, whilst completing a breath test, the police should complete a very detailed pro-forma known as the MGDDA document. This stands for Manual Guidance Drink Driving form A. It is about 25 pages long (A4 size) and details every aspect of the breath test procedure including all necessary questions, answers, warnings and requirements. There is a separate document, the MGDDB, for use when a blood or urine specimen is taken. The MGDDC document details any hospital procedure. The MGDDD document details any technical defence, such as a post driving consumption defence, where back calculations of alcohol should be made (and often fail to be completed correctly) by the police.

The printout showing the result of the breath test should be attached to one of the pages within the MGDDA document. The printout will usually be signed by the completing officer and you, the motorist. The MGDDA document will be signed by the officer and any witness. Like the situation with an intoxilyser printout, the police and CPS believe that the MGDDA document can be used in evidence, as an exhibit. In every case I have dealt with the MGDDA (which includes the printout) is referred to within the Advance Disclosure (documents handed over at the first court hearing) as an exhibit. See the first entry on the “List of Exhibits” in my client’s case:

In actual fact, the MGDDA document and the breath test printout are not exhibits and cannot be presented in evidence as exhibits.

The first paragraph reminds the CPS lawyer to try and get an admission from you. If you admit to something the CPS does not have to prove it! In my view, never admit to anything as far as the MGDDA form goes. You’d be amazed at the mistakes that can be made by the police.

Read the second paragraph. Then read it again. It’s important. Most CPS lawyers don’t seem to realise that the MGDDA document (or the MGDDB/C/D) is inadmissible hearsay. That’s correct - inadmissible hearsay. In other words, it cannot be used in evidence.

But if you agree the MGDDA in an admission, then it can. General rule - don’t agree!

As far as the exhibit issue is concerned, note also the second paragraph. It states: “If the officer who filled out the Form were in the witness box he could not produce the Form in chief as an exhibit”. In other words, the MGDDA document is not an exhibit - whether or not the person completing it is in court!

Even if the officer writes a witness statement referring to the MGDDA document as an exhibit, it still cannot be used as an exhibit!

The only way the content of the MGDDA document can be used in written evidence is if the content is incorporated into a witness statement. In other words, the witness statement from the officer should contain all the information on the MGDDA document.

If you have been charged with drink driving, check your MGDDA form and witness statement. I bet that the statement from the officer (even if you have one!) does not contain the information from the MGDDA document.

A quick word of warning. Use a solicitor that knows what they are doing. You do not want to rush off to the CPS and point out its mistakes or ask for a properly completed witness statement prior to the trial date. Remember, they have to prove the case against you. If they have not got the evidence, they have not got a conviction.

For full case studies visit: http://www.drinkdrivingsolicitor.co.uk/case-victories/

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