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The Drink-Drive Offences: A Handbook for Practitioners


ISBN13: 9780854900756
Published: February 2011
Publisher: Wildy, Simmonds and Hill Publishing
Country of Publication: UK
Format: Paperback
Price: £49.00



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The statutory provisions on drink-driving are set out in just fifteen sections of the Road Traffic Act 1988, and two from the Road Traffic Offenders Act 1988, but there have been over 700 appeals to the Divisional Court on points of law since the Acts came into force. The result is a body of law which is technical and complex, covering a wide array of matters.

The Drink-Drive Offences provides a practical, comprehensive, accessible and up-to-date account of this broad and intriguing area of law. It traces the procedure from preliminary testing to penalties, taking the legislative provisions in sequence and explaining the effects of the case law.

The routines for preliminary testing, and for requiring and analysing specimens of breath, blood or urine, are examined. This includes the recurring question of the reliability of the breath analysis instrument and the circumstances in which a blood or urine specimen may be required instead of a breath specimen.

The constituents of the offences are explained, in chapters on the excess alcohol offences, the offences of being in charge, the offences of being unfit to drive, and causing death by careless driving when under the influence of drink or drugs.

The statutory assumption that the level of alcohol at the time of the offence was no less than in the specimen receives special attention, along with the “hip flask” defence, where the motorist asserts that it was alcohol consumed after driving which accounts for being over the limit.

A chapter is devoted to the offences of failing to co-operate with preliminary tests and failing to provide specimens, with full consideration of what constitutes a “reasonable excuse” for these purposes. Finally, the penalties are set out, including special reasons for not disqualifying.

Subjects:
Criminal Law, Road Traffic Law, Wildy, Simmonds and Hill
Contents:

Table of Cases
Table of Statutes
Table of Statutory Instruments, etc
Table of Conventions
Preface

1 Introduction
1.1 The background
1.2 The offences
1.3 The investigation
1.4 Definitions
1.5 Use of specimens in proceedings
1.6 Trial
1.7 Penalties
1.8 The MG DD Forms
1.9 The Crown Prosecution Service
1.10 Railways, tramways, shipping and aviation

2 Preliminary Tests
2.1 Introduction
2.2 Stopping of vehicles
2.3 Trespass and bad faith
2.4 The prerequisites
2.5 Preliminary breath test
2.6 Preliminary impairment test
2.7 Preliminary drug test
2.8 Power of arrest
2.9 Power of entry
2.10 Time for caution

3 Breath Specimens ;
3.1 Introduction
3.2 The power to require specimens
3.3 The place at which specimens may be required
3.4 The breath analysis device
3.5 The procedure for requiring specimens
3.6 Lower breath reading to be used
3.7 Borderline cases: the statutory option
3.8 Conclusion of the breath analysis procedure

4 Blood and Urine Specimens
4.1 Introduction
4.2 The place at which specimens may be required
4.3 Medical reasons why breath cannot be provided or should not be required
4.4 Device unreliable, unavailable or impracticable to use
4.5 Device not having produced a reliable indication
4.6 Person having a drug in his body
4.7 Person’s condition might be due to some drug
4.8 Relationship between blood and breath specimens
4.9 Choice of specimen: blood or urine
4.10 Time for providing urine specimen
4.11 Failing without reasonable excuse to provide
4.12 The statutory warning
4.13 Consent to the taking of a blood specimen
4.14 The procedure for making the requirement
4.15 Taking and dividing the specimen
4.16 The analysis
4.17 Detention following the procedure

5 Incapacity to Consent and Hospital Patients
5.1 Persons incapable of consenting
5.2 Hospital patients

6 Causing Death
6.1 Introduction
6.2 Causing death
6.3 Driving without due care and attention
6.4 Driving inconsiderately
6.5 Other persons
6.6 Unfit or with excess alcohol
6.7 Failure to provide specimens

7 Unfitness to Drive
7.1 Introduction
7.2 The meaning of ‘unfit to drive’
7.3 Evidence of unfitness
7.4 ‘Drink or drugs’
7.5 ‘Drug’
7.6 Arrest
7.7 No likelihood of driving

8 The Excess Alcohol Offences
8.1 Introduction
8.2 ‘Drives’
8.3 Attempting to drive
8.4 Motor vehicle
8.5 Road
8.6 Other public place
8.7 Consuming
8.8 The prescribed limit
8.9 The statutory assumption
8.10 The exception to the statutory assumption
8.11 ‘Back calculations’
8.12 Aiding and abetting
8.13 The defence of duress or necessity
8.14 The defence of insanity

9 The ‘In Charge’ Offences
9.1 Introduction
9.2 In charge
9.3 Likelihood of driving
9.4 No likelihood of driving

10 The ‘Failing’ Offences
10.1 Introduction
10.2 The offences
10.3 The elements of the offences
10.4 The burden of proof
10.5 The meaning of ‘fail’
10.6 ‘Reasonable excuse’
10.7 Circumstances which constitute reasonable excuse
10.8 Whether requirement made
10.9 Warning of the consequences of failure

11 Trial, Evidence, Procedure
11.1 Mode of trial
11.2 The Information
11.3 Documentary evidence concerning specimens
11.4 Disclosure
11.5 The MG/DD forms
11.6 Adjournments
11.7 Video recordings
11.8 Identification
11.9 The discretion to admit or exclude evidence
11.10 Advice, assistance and representation
11.11 The Justices
11.12 Re-opening the prosecution case
11.13 Stay of proceedings
11.14 Alternative verdicts
11.15 Appeals

12 Penalties
12.1 The penalties
12.2 Personal mitigation
12.3 Guilty pleas
12.4 Ancillary orders
12.5 Purported rescission of sentence
12.6 Costs

13 Special Reasons for Not Disqualifying
13.1 Introduction
13.2 Evidence
13.3 Special to the offence: the four criteria
13.4 The seven-point checklist
13.5 The distance driven and the degree of danger
13.6 Emergencies
13.7 Laced drinks
13.8 Other special reasons
13.9 Failing to provide specimens
13.10 Argument available once only
13.11 The discretion not to disqualify
13.12 Summary

Index