"How can you defend drink and drug drivers?"

Most of us at MAJ have been in a situation where we have had to answer this question, be it through our social media channels, or on a night out when a friend of a friend gets wind of what we do for work.?

It is a very simple answer, but one which most people don't accept due to the nature of the area we practice in. The bottom line for all criminal offences, ranging from a speeding fine all the way to murder, is that a person is innocent until proven guilty. A person can only be prosecuted for an offence if the case carries sufficient evidence against them, which can be proved beyond all reasonable doubt.?

"But WHY do you do it? Do you not feel bad??"?

The operative word in this question is "feel".?A criminal defence solicitor isn't instructed to become emotionally involved in a case. We have to keep our personal feelings separate and focus on the main objective, which is making sure our client is getting a fair trial in line with the law. Everyone who commits an offence (no matter how big or small) ?is entitled to legal representation. It is a solicitor's job to ensure that the client receives the correct sentence for the crime they have committed, or no further action if they are not guilty.?

The reason drink and drug driving can be defended so successfully is because police officers don't always do their job correctly. The law in this area is quite straightforward, and if it is followed, then theoretically speaking everyone who has been driving above the legal limit should be prosecuted accordingly. Right? But documents are missed, blood samples are taken incorrectly, and the procedure isn't always adhered to. Let's take an example of a recent case with one of our clients.?

Ian is 38 and is married with 3 young children. Occasionally, Ian smokes cannabis to relieve symptoms of stress and PTSD which he now suffers after gaining a significant injury when he was in the army. Ian was working away from home this particular week and smoked cannabis on the Thursday evening before he got the train home on Friday morning. On the Saturday evening, he went?to the pub with a few of his friends to watch the Rugby after a really difficult and stressful week at work (his wife gave him permission of course). Ian only lives round the corner from the pub, less than a 10-minute drive, and it's in quite a remote area, but he decided to drive because the weather was awful. Ian doesn't drink.?

When Ian was leaving the pub, as he went to pull out, a new learner driver misjudged the road and ploughed straight into the side of his passenger door. The drivers exchanged details and the police were called. Due to there being an accident, the police are automatically allowed to conduct roadside breath and drug tests. Ian was drug wiped, and the result came back positive for cannabis in his system, but there was no obvious impairment. He was taken to the police station for a blood test. He consented to the MGDDA document, and he gave his blood sample. He was then told it would be 3-4 months before his results came back.?

In the meantime, Ian phoned us, obviously worried about the possibility of a driving ban. He informed us he hadn't yet received his blood results and he had no idea what the level would be, but he had only smoked one joint on the Thursday evening, and he never has more than one and only does it when he knows he doesn't have to drive for a couple of days. We asked him about his experience at the police station, he told us he remembers the MGDDA document being completed. We then asked if he had been given half of his blood sample to be independently tested, he said "oh I wasn't offered one". This case was now pretty much as good as closed.?

The law clearly states, in Section 15 (5) of the Road Traffic Offenders Act (1988):?

(5)

Where, at the time a specimen of blood or urine was provided by the accused, he asked to be provided with such a specimen, evidence of the proportion of alcohol or any drug found in the specimen is not admissible on behalf of the prosecution unless—

(a)

the specimen in which the alcohol or drug was found is one of two parts into which the specimen provided by the accused was divided at the time it was provided, and

(b)

the other part was supplied to the accused.

As you can see from the above, the police officer did NOT adhere to the procedure, and Ian was never given his opportunity for a fair trial given the fact that he could not go and get his own blood sample independently tested. We wrote to the CPS, highlighted the error, and the case was thrown out. Ian never had to go to court, and we never knew the result of his blood test,?

But he was still drug driving? So why should he get away with it? It's not fair"

The likelihood of Ian being over the legal limit is extremely low, due to cannabis having a short half-life. ?The law is based on many things. Facts, procedures, culpability, level of harm, evidence - but it is not based on fairness. The fact that the police officer in Ian's case had not adhered to the correct procedure was enough for the case to be dismissed. Rules are rules, they are there for a reason, and it is a solicitor's job to ensure these rules are followed correctly.?

Remember the first paragraph? "A person can only be prosecuted for an offence if the case carries sufficient evidence against them, which can be proved beyond all reasonable doubt"?- how could Ian's case be proved beyond all reasonable doubt? What if the case was taken to court with a false blood reading from samples being mixed up? ?What if he received a driving ban and lost his job based on that false reading, but he was actually under the legal limit, and he'd never have known? Would that be justified? Ask yourself that question. If the answer is no, you'll see why we choose to do what we do.?

We hope this article has given you an insight into the role of a criminal defence solicitor. If you, or someone you know has been charged with a motoring offence, please don't hesitate to get in touch with one of our legal experts on 0151 422 8020. We will be more than happy to help.?

M.A.J?

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