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How to defend a drink driving charge.

Updated: Feb 16, 2023




FIRSTLY, SOME COMMON sense.


It is almost always completely useless trying to argue that you weren’t ‘slurring your words’, you weren't ‘swerving’ a little on the road or that you weren’t ‘unsteady on your feet’.


If your only argument is to dispute what the police officer says about you when he saw you -after you had been drinking- then you're largely wasting your time.


Why?


Because you were drinking, and the police officer wasn't.


That’s common sense. It applies in court too.


So, if this is all you have, you're giving the Judge a simple decision to make: do I believe the person who was drinking or the one who wasn't?


What do you think?


Imagine you were the Judge in that situation. Who would you likely believe?


Exactly. That’s why focusing on your demeanour at the scene is often a waste of time because you've given the Judge an easy decision to make.


These arguments are usually pointless.


Instead, you should focus on other arguments. Like what?


Legal arguments.



LEGAL ARGUMENTS INVOLVE harder, stickier questions. They’re more ambiguous, need more thought, are tougher.


Was the law followed? Did the police officer follow the law when you were arrested?

This is far more relevant because the law is the law. It has to be followed. It either was or it was not.


If it was then that is one thing. If it was not, that is something entirely different.


When it comes to drink driving the law is quite specific. Its specific for a reason.

Everyone must be clear about what is required of them.

The police need to know what they can demand of you i. e. blood, urine or breath.


The circumstances around this are set out clearly in the law. The reasoning is pretty sensible.







If the police officer is going to demand something from you the law almost always requires that the correct wording is used to make this demand.


Why?


Because when the officer demands a breath, blood or urine specimen from you he says something else.


He warns you.


He warns you that if you decide not to give that specimen of blood, urine or breath you are breaking the law and the punishment can include either a €5,000 fine or 6 months in jail, or both.


This is what's known as a "penal statue", in other words, the law here carries the threat of a large fine or jail -or both- for non-compliance.


That’s what penal means: it’s a punishment given by law.


Penal statutes/laws occupy a different place in the minds of High Court judges. To them penal statutes are far different from ordinary statues.



SOME OF THE BEST EXAMPLES I can give come from mistakes that the State make.


It is common for police to spell your name slightly incorrectly (e.g. Suzanne instead of Susan) or to spell your address slightly incorrectly (Rosemont Terrace instead of Rosemount Terrace) or to get your date of birth wrong.


Errors like these are completely irrelevant and can easily be changed (amended) in court.


Why?


Because they are regarded as minor technical flaws that don't alter the basic charge before the court and which don't cause you any disadvantage or detriment (the legal term for this is "prejudice").


Basically you can't demonstrate that you've suffered any prejudice if your date of birth is written on a charge as 1 February when it should be 11 February.


What "injury" have you suffered? None. Plus, an error here by the police doesn’t carry the risk of a large fine or jail sentence. It is seen as a typographical error and courts will often change (amend) these errors to the correct details.


This is the approach courts take to "minor technical defects".


Penal statutes are completely different.


Because they contain the threat of jail or a large fine if you don't comply, the High Court has often taken the view that strict compliance is required.

That means that if you're being required in a police station to provide a blood specimen the police officer must use the precise wording that the law sets out.


The law says that you must permit the doctor to take a specimen of blood from you, but you can choose to provide a specimen of urine instead. That’s to facilitate people who are afraid of needles. They can give urine instead.


But this is the legal demand that the police must make i.e. the primary requirement is blood, but the option is urine.


What if the police officer mixes this up?


What if he tells you that you must provide a specimen of urine or permit the doctor to take a specimen of your blood? Does it matter? After all you have to give one or the other. Does it matter if he demands blood or urine instead of urine or blood?


Yes. Absolutely.


The law sets out clearly (section 12 of the Road Traffic Act 2010) that the primary demand is for blood with the option of providing urine if you choose.

Not the other way around.


There is no option to provide blood. The requirement is for blood, the option is for urine.


This may sound overly technical, but it is the law, and the law must be followed.

Why?


Because section 12 is a penal statue.


As well as demanding a specimen from you it warns you a little later -s. 12(4)- that if you fail or refuse to give the specimen you can face a fine of €5,000 or jail of 6 months or both.

And because of this, strict compliance with the law here is required by the courts.


That means that if it is not the court may strike the case out.


The law is the law. It is either followed or it's not. If it is, then that is one thing. But if it’s not, and the law carries a threat of a fine or jail, different rules usually apply.






IT MAKES NO SENSE arguing things that have little chance of success. And mixing weak arguments with strong arguments only weakens your strong arguments.


Arguing your case on legal issues is often a far better approach because ultimately no Judge really wants to convict someone when the law has not been followed by the State.


Especially when the law in question carries serious penalties.

So, start with the law.


You’ll probably be doing yourself -and the Judge- a favour.


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