Updated: Oct 17
YOU MAY HAVE heard about this one before.
The basic gist is that someone has an accident while driving their car. Usually this happens at night, often after closing hours.
Anyway, they have a crash and before the police arrive, they miracle a bottle of alcohol (there’s always one lying around when you need it) and guzzle it down.
They’re nervous you see, and they need a stiff drink (whisky, gin or vodka is popular) to calm them down.
The police arrive, breathalyse them and arrest them for drink driving.
Later they claim that they drank alcohol after the accident and this caused them to be over the limit.
Sounds plausible right?
This is a defence so its not far-fetched.
It does exist.
It’s known as the “hip flask defence”.
First, some historical context.
IT GETS IT'S NAME from that fancy little metal jar that gentlemen carried around during the era of Prohibition in 1920’s United States.
Pious religious types had concluded that alcohol was responsible for most of society’s ills, like public brawling, addiction and domestic violence.
This was all true.
The exponential growth of organised crime
and what became known as the Mafia
across the United States can be traced directly back
to the era of Prohibition.
So, in 1919 the US Senate passed a law banning the sale of alcohol across the country.
The only problem was that the public still wanted to drink so they bought hipflasks and filled them with alcohol.
Hip flasks were easy to conceal. You could put one in your pocket or handbag and nobody would know it was there.
The public couldn’t buy alcohol legally anymore so this demand was filled by local gangs and small organised crime groups.
Prohibition was repealed in 1933 by President Franklin Roosevelt, but by then colossal damage was done.
The exponential growth of organised crime and what became known as the Mafia across the United States can be traced directly back to the era of Prohibition.
Before Prohibition the mafia and organised crime were a local policing problem, but Prohibition made them fabulously rich and extremely powerful, eventually capable of hobbling big business and influencing elections nationwide.
BACK TO HIP flasks.
Over time the ‘hip flask defence’ began to emerge, often in cases where a person had crashed and began drinking afterwards.
You have to prove that
if it hadn’t been for that alcohol you drank after driving,
you’d have been under the limit.
But it’s rarely used these days.
There's a good reason for that.
The law continually evolves. For every defence raised, a law will later be created to squash it.
At one time a person could claim that after driving but before being arrested they drank alcohol. It was up to the Judge to determine whether they believed it.
The prosecution then had to show that the person didn’t drink after driving.
That was a very difficult argument to win on.
How could you be sure they didn’t?
Some people escaped conviction for drink driving because of it.
So, the law jumped in to put an end to this ‘escape hatch’.
Now it’s no longer the prosecution’s job to show that the person didn’t drink alcohol after the driving but before they gave a breath specimen.
Same applies to blood or urine specimens.
Now the onus is on you.
The onus is on you to prove something.
You have to prove that if it hadn’t been for that alcohol you drank after driving, but before giving a breath specimen, you’d have been under the limit.
You have to prove that.
Now that’s a very difficult argument to win on.
In fact, a court can ignore the fact that you drank after driving unless satisfied by you that “but for that consumption” the alcohol in your breath, blood or urine wouldn’t have exceeded the legal limit.
The same situation applies if you’ve been arrested for drug driving. If you consume a drug after the driving but before a blood sample is taken from you the court can ignore that.
So the onus rests with you to show that “but for” the alcohol consumed after the driving (but before the breath test) you would have been under the limit.
Pretty tough, eh?
How do you prove this?
How can you prove this?
BUT THERE IS ANOTHER reason why so few people rely on the hip flask defence.
They usually need an expert.
Specifically, a medical or scientific expert.
In other words, you’ll usually need to produce medical or scientific evidence showing that the alcohol you drank after you drove caused you to exceed the legal limit.
There's a good reason for that: how can you state with any certainty that if it hadn’t been for that alcohol, you wouldn’t have been over the limit?
And good luck trying to find a medical or scientific expert who’ll come to court to give that evidence for you.
After all you’re not a scientist or a person with a medical background. Even if you are, what expertise do you have on the scientific effects of alcohol on a body?
But what’s equally important is how credible you are as a witness.
what are the penalties for this?
Just six months in jail
or a €5,000 fine
If you say something in court that contradicts what you said to the police when they arrested you, you’re not credible.
For instance, saying that you were guzzling whole mouthfuls of vodka as the police approached you is just not plausible.
If something isn’t plausible its usually because its not true.
If the judge decides that you’re not credible, you’re sunk.
But let’s just say you were drinking after driving and before the police got there.
There's something else you need to worry about.
Section 18 of the Road Traffic Act 2010 created the offence of “frustrating a prosecution”.
The law now states:
“A person shall not take or attempt to take any action…with the intention of frustrating a prosecution”.
IN HIS BOOK Drunken Driving, Barrister David Staunton says that “[section 18] is very broad and is designed as a catch-all to cover any kind of mischief imaginable by the use of the phrase ‘any action’.”
His conclusions are pretty clear.
A person who “places reliance on the hip-flask defence may be convicted of an offence” of frustrating a prosecution.
And what are the penalties for this?
Just six months in jail or a €5,000 fine or both.
So, if you’re in a public place and you’ve stopped driving its best not to start gulping down naggins of vodka or whisky.
After all, you don’t want to spend six months sharing a small little room with a new friend, do you?
I didn’t think so.