Driving | life-in-scotland.info

Drink Driving in Scotland: is There a Legal Defence?

Prosecutions under s.5(1)(a) and (b) of the Road Traffic Act 1988 are complicated and it would be impossible to detail all the possible angles and defences that may require to be investigated. This article will attempt to highlight some of the more common issues that should be addressed if you are facing a charge of drink driving in Scotland.

Under s.5(1)(a) it is an offence if a person drives or attempts to drive a motor vehicle on a road or other public place after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit. The “prescribed limit” is defined by s.11(2) as 35ug of alcohol in 100ml of breath, 80mg of alcohol in 100ml of blood or 107mg of alcohol in 100ml of urine.

The first issue I would like to point out is that the Crown will not initiate proceedings on the basis of breath-alcohol readings of less than 40ug. Although technically the police are entitled to proceed, the Crown are personally prosecuting the case by virtue of an agreement between the Crown Agent and the Law Society of Scotland. Rather unfairly in my view, there is no similar agreement for specimens of blood or urine. So if you are charged with drink driving in Scotland with a blood-alcohol reading of 81mg, then you better get some good advice from a road traffic expert because the Crown, in all probability, be will initiate proceedings.

The Intoximeter EC/IR is the main device used in Scots law for the analysis of breath samples. It has full type approval under section 7(1)(a) and is recognised as such as a matter of judicial knowledge. It very rarely, however, produces identical readings which will be of a concern to the person accused of drink driving.

Type approval dictates that if the variation between the two samples of breath vary in excess of 15% then the readings are inadmissible and some other procedure will presumably be invoked. Furthermore if an accused’s reading is less than 50ug/100ml or less then s.8(2)ug then the police will require to explain that the person may claim that specimen should be replaced by either blood or urine. This provision takes into account the variations that can be produced by the Intoximeter EC/IR and again will no give the public a great deal of confidence in the prosecution of drink driving cases in Scotland.

My advice is that an alternative sample should always be provided. There are a number of technical reasons for this although, to put it very simply, an accused person has nothing to lose at this stage by doing so. Interestingly, it has been suggested to me by clients I have defended that the police have tried to dissuade them from the alternative sample route. Please be aware that where improper pressure is exerted on an accused not to exercise his option to provide a specimen for laboratory analysis then this will result in an acquittal. Again the services of an expert motoring lawyer are essential in these circumstances.

I would also advise that the independent analysis of samples is undertaken. There are strict time limits that apply due to the degradation principle and, again, advice should be sought at the earliest opportunity. Clearly a degree of expense will be incurred by instructing an independent analysis although it could be the best money you have ever spent.

It is also essential to look at the constituent elements of the charge: namely the concepts of driving/in charge and public place/road. There is a vast amount of legal authority on these subjects and these lines of defence should be investigated.

There is also the defence of “post-incident” drinking. This is loosely referred to as the “hip-flask” defence and means that the alcohol that has lead the prescribed limit to be exceeded was consumed after the act of driving. This is a statutory defence and will require to be properly stated in Court with a toxicology report detailing an expert’s view on the expected alcohol reading at the time of driving. These cases can be complicated and detailed instruction from the client is essential.

These are the very basics and I hope I have given at least a starting point to those who are facing charges of drink driving in Scotland. Expert advice should be sought on this highly technical and specialised area of law. Even in cases where you may think there is no hope, there can be unexpected technical defences and it is imperative that the case is properly examined to ensure a plea of guilty is not tendered to a charge that will never prove.

Michael Lyon is a specialist motoring lawyer based in Glasgow. The Firm undertakes the defence of all types of Road Traffic Cases in Scotland. Expert representation provided in all Courts including Glasgow, Perth, Dumfries, Selkirk, Stonehaven, Aberdeen, Kilmarnock and Paisley.

Driving to Scotland

scotland

Image taken on 2008-05-02 09:23:50 by vgm8383.

Careless Driving Killer

From 18 August 2008 drivers who cause death by careless driving or by driving while unlicensed or disqualified may go to prison. In Scotland you can expect to be tried on indictment before a Sheriff and Jury and get up to 5 years inside!

This is for something you had no intention of doing. You may have even tried very hard not to do it! Lets not get confused here. If you kill someone because of Dangerous Driving you can already go to jail. The distinction is that if it was a genuine error, a moment of inattention then you can now go to jail for a long time!

In the past Scottish courts have been unable to take the consequences of careless driving into account in their sentencing- For one obvious reason. “The driver didn’t mean it and his driving did not fall far below what a reasonably competent driver would have done in the same circumstances” I have been practising law in the courts of Scotland for 24 years and there is no doubt in my mind that this is a poor piece of legislation drafted by those who are more concerned with placating the tabloid press than justice.

How can it be just to jail a person for being involved in an accident caused by poor driving. We are none of us perfect and can all from time to time experience a lapse in concentration or make a momentary error in judging a speed or a distance. Do we need to be crucified because another family has been devastated by our error?

“Killer driver jailed” may be a good headline but does it make sense where for instance we learn that the careless driving amounted to a driver who swerved to avoid a collapsed drain cover causing his car to roll over and crash into another vehicle causing death? There but for the grace of God go you or I. Believe me when I tell you that the stress of knowing that you are facing conviction and jail for accident could drive a decent law abiding motorist to suicide.

The ‘Don’t drive distracted’ announcement from Justice Secretary Jack Straw is supposed to highlight a range of new careless driving laws but seems to refer to those people who choose to drive while putting on their makeup, host a conference call on their mobile or chomp down their Big Mac and fries as they scald their legs with coffee and drive to work. THAT IS DANGEROUS DRIVING and we have a law that protects us all. If you cause a death whilst doing so I have no doubt any reasonably minded jury would find you guilty of causing death by dangerous driving and off to jail you could go. We do not need a new law extending “careless driving”. If the consequence of your careless driving is a death the court say it must be taken into account does this therefore mean that if the consequences are not death but injury that must also now be taken into consideration. I would suggest that the answer is now, yes. In Scotland we will have to see what the High Court makes of our new laws and how to interpret same.

Changing the law in relation to those idiots who cause death whilst deliberately driving without insurance or a licence has been a long time coming but again it does open the general public to a level of judicial jeopardy that they have never been in before. If you haven’t checked your insurance company direct debits I suggest you do so today! (If you have any questions about this blog piece you may want to Ask A Lawyer

Urgent cases should call us on 0800 612 9597 now.

Drink Driving in Scotland-the Facts

Drink Driving Law In Scotland

Drink Driving In Scotland

This is a complex and serious area of law therefore we offer FREE online advice in relation to such cases. Ask us about your own case by going to our website at roadtrafficlaw.com

Post Incident Drinking Defence

Expert evidence on post incident drinking

Information required by your expert

Failing to provide a specimen

Procedures blood or urine samples at police stations

Requests for blood or urine samples at hospital

The breath testing equipment

Back calculations and how they operate

The Lord Advocates Directive

Post Incident Drinking Defence

There is a legal presumption taken from section 15(2) Road Traffic Offenders Act 1988 that the proportion of alcohol in a drivers breath, blood or urine at the time of the alleged offence was not less than in the specimen.

This means that the defence require to establish the defence if the driver claims that he/she had been drinking after the incident but prior to giving a sample. Check section 15(3) – if the driver establishes the matters set out at section 15(3) on a balance of probabilities then the defence is made out and must be rebutted by the Crown case. This type of defence is common in practise but uncommon in success. It is often referred to as “The hip flask defence” coming from the term used in a case where the accused claimed that after a crash he had taken a few drinks from his hip flask to calm his nerves. Sheriffs tend to take the view nowadays that anyone who has been involved in a road traffic accident will expect to be tested and would be extremely unwise to consume any more alcohol in these circumstances. It is therefore VERY difficult to establish such a defence.

It is not impossible but will usually require the evidence of an independent forensic toxicologist who can provide a detailed report that will hopefully support the accuseds’ explanation of the amount of alcohol consumed and when.

The defence must call scientific evidence on the point unless it is obvious to a layperson that the post offence consumption of alcohol explained the excess. Never assume that it would be obvious, you would generally always be wise to seek out a report and to forward a copy of same to the Crown well in advance of the trial to have it agreed wherever possible. Reports normally cost in the region of £250+Vat to prepare however if you require your expert to come to court to give evidence this can be very expensive. It will depend upon the time taken for the witness to be called and to give evidence.

If a driver provides a specimen a long time after the driving offence and this proves to be below the limit the forensic experts acting for the Crown may provide a report indicating that at time of offence the blood alcohol was over the limit and therefore the driver may still be prosecuted. This is not something that happens very often probably due to the evidential issues and difficulties n presenting the case in a fair manner.

The Expert evidence on post incident drinking

The expert will provide a report setting out his presumptions and the mathematical calculations used in coming to any conclusion.

To be successful you really need to provide the expert with as much accurate information as possible otherwise there will always be an element of guesswork about the process and this will work against you. Although the defence ONLY requires to be made out in the Balance of probabilities you will find that this is still a high standard. It is worth instructing a specialist law firm to assist with this whole process but however you proceed there will be a set amount of information that your expert requires. It can be worth calling the forensic department of your local University to see if they have an expert available and then ask them to fax you a list of they require. They sometimes have a form that you can use to provide the required information.

Basic Information Required

Full detail of any food consumed from six hours before the

offence.

Weight, height, build, age and sex

Known medical condition (Acid reflux, irritable bowel etc)

Medication taken regularly, or within 6 hours prior to drinking;

Type and quantity of alcohol consumed before the offence and, if possible, the times at which the units of alcohol were consumed. Brand names ok and provide the actual containers that the drink was consumed from eg Glass marked with the measure taken.

the same information concerning any alcohol that you consumed after the offence but before you gave the specimen for the test.

Failing to provide.

This is a complex area of law and there are a great many cases that have assisted us in the definition of what is and is not a “reasonable excuse”. It is not a reasonable excuse to state that you did not give a sample because you wanted your lawyer to be present. Nor is it a reasonable excuse to refuse to provide a specimen of breath or other sample simply because you had not been the driver.

The main successful area of reasonable excuse has tended to be cases where there is a genuine medical problem such as Asthma or real phobia of needles etc. Medical evidence of such a phobia or condition will require to be obtained and examined. Simply because you are asthmatic will not preclude you from providing a sample. The court will require full details about your condition and how it would affect your ability to provide a sample. Expert evidence may be required in relation to your psychological state as this could also have had a bearing on whether or not you could commit this offence.

Once such a defence is raised, the onus is upon the Crown to prove beyond a reasonable doubt that it has failed and that you are therefore guilty of the offence.

Failing to provide a sample is a very interesting area of defence and we have had a great deal of success in defending such cases. We do not wish to publicise just how we have been successful as this is a competitive area of the law and we all guard our knowledge jealously. If you want the benefit of our success in this area pleas e call or provide us with some of your case details online.

Procedure for blood or urine samples

An area of some confusion as the motorist tends to believe that they have a choice about what type of sample is given and how and where it should be given. You will find that the police officer requesting the sample can decide what type of sample is to be used. Sections 7, 8 and 9 of the Road Traffic Act 1988 set out procedures which must be followed by the police when laboratory samples of blood or urine are taken. Sometimes police officers fail to follow the strict guidelines that are laid out in the forms that they use as an aide memoir when following the procedure and then he defence have an opportunity to win their case!

The admissibility of those specimens in excess alcohol cases depends upon the procedures being followed strictly. The procedures are set out in this manner to secure a fair and just process that is beyond reproach.

As a suspected driver you are legally obliged to provide a sample where an officer has reasonable grounds to suspect that you have driven a vehicle whilst under the influence of drink or drugs. Do not refuse to give a sample because you were not driving or you were not driking- Bad idea to refuse as this is a separate offence. Let the lawyers sort out the presentation of the defence at court. It is best for you to cooperate fully with the testing process and procedures and simply note carefully what is being said to you and what is going on.

Before a sample is taken the driver needs to be told:

The reason why breath cannot be used as a sample;

That the officer will decide that the sample will be Blood or Urine and what it will be.

Tell you that if you refuse then this is a separate offence. I tend to think they should also tell you that you will most likely be disqualified from driving or holding a licence if you fail to provide.

If they want to take blood they require to ask about medical conditions or any reason to refuse such a specimen. (The police casualty surgeon is called out to take a sample of blood from you)

Section 8(2) of the Road Traffic Act, a driver may choose to replace a breath specimen by supplying a lab sample in the following circumstances

Where the specimen of breath exceeds the statutory limit; but does not exceed 50 microgrammes of alcohol in 100 millilitres of breath

The police officer then require to inform you

You are entitled to have this specimen replaced by a specimen of blood or urine; but it will be for the police officer to decide whether the replacement specimen is to be of blood or urine.

He has to check if the driver has any medical reasons why a sample of blood cannot or should not be taken from him.

There are sometimes failings in this process and we find that we can successfully defend motorists in such cases where the police have failed in the procedure required of them.

The test of whether the officers failure has caused a fundamental breach of procedure that cannot be cured is usually a matter for the Sheriff however in circumstances where the police officer has failed to check if you have any medical condition that precludes you from giving such a sample we can safely say that we should win that point and save your driving licence.

Blood or urine samples when at hospital

Sometimes samples are taken from a driver when he/she is in the process of receiving treatment following a road traffic accident. Again this is an area of law where the prosecution require to be careful about the methods used to ensure fairness and admissibility of evidence.

The reporting police officer should ASK the driver if there is any reason that he/she cannot provide a sample of blood for analysis. Sometimes this whole process is just handed over to the police casualty surgeon or to a Doctor who is in attendance for another treatment reason. One has to consider if proper legal cautions have been provided and if all proper procedure followed.There is often room for error in the procedure and this area therefore requires careful consideration of a specialist road traffic lawyer.

The Breath Testing Equipment

The Intoximeter EC/IR, the Camic Datamaster or the Lion Intoxylizer are used throughout the Uk we understand from experience that the Intoximeter EC/IR is now the most widely used piece of equipment for breath testing in Scotland.

They are all type approved and as such certain presumptions of reliability follow. If the defence wish to challenge the reliability iof such a device they really require to do so long before the trial!

They will require to have checked the instrument, the service log,the calibration process, the details of use on day and any other aspects of use. However they may find that the Crown are reluctant to cooperate with the defence on the basis that the whole issue of challenge is merely a “fishing expedition” for the defence.

Therefore when instructing your lawyer on this issue you must bring up the issue of device reliability if you consider it important eg If the reading seems way to high then you should explain to your lawyer what alcohol if any was consumed and why the machine must be at fault. You may require to obtain a forensic toxicologists report to validate your claim BEFORE the Crown will even allow your solicitor to obtain any details regarding the intoximeter device. If the Crown persist in their refusal to provide disclosure on this issue then other areas are open to the defence in an attempt to secure the access to documents that is required for the proper presentation of your defence. You will require an experienced defence lawyer to pursue these issues with the required vigour for success.

Breath Alcohol Less than 40ugs

In Scotland a Lord Advocate’s directive ensures that persons with a reading of 40ug or less will not be prosecuted and in England a driver will not be prosecuted under section 5 with a breath alcohol level of less than 40 ugs. In accordance with the guidelines contained in Home Office Circular 46/1983.

The Common Mistakes in Drink Driving Cases

Drink Driving

Job loss, business failure, loss of home, relationship melt down!!

Drink driving, drunk in charge, failing to stop. We can help provide peace of mind. We guarantee prompt response to your e-mail, texts, phone calls. We use the net, not just to promote our service but to keep in touch with you and to deliver information and results. We have a vast experience in representing people from all walks of life, faced with a drink driving charge.

Drink Driving ruins lives- We do not condone it and nor do our clients but we do our best for those who come to us for help.

We frequently deal with drink related cases and delicate situations. You may rest assured that we are committed to communicating with you regularly and having a dynamic impact on your case.

Experience is the key to success in such case. Myself and my team of lawyers have more than 30 years court experience between us. Both of my assistants were former Procurator Fiscals and one of them was even a traffic policeman for the first 1/2 of his career!

We can make our experience count in your case. We did not set up our law practise yesterday we have been doing this for more than 24years.

Drink Driving, Dangerous Driving and Speeding cases, often require a lot of technical and scientific information to be obtained analysed and thoroughly considered. In addition to knowledge of the basic laws of procedure and evidence that govern just what evidence can be laid before a court.

Drink driving cases can be among the most difficult to defend. Because of the evidential complexity, several mistakes can be made when it comes to presenting and defending road traffic law cases. Expert legal assistance therefore is essential. The outcome can mean death or terrible injuries to others and in relation to you it can mean losing your licence, losing your job, paying considerable fines, being sent to prison, having a huge hike in your insurance premium, and the effect on your current prospects. We can provide you with a FREE online consultation right NOW!

Mistakes In Drink Driving Cases…

Assuming The Case Is A Loser

When that intoximeter has printed out the reading of more than 35ug your heart sinks as you realise the consequences of the result. It is at this stage that some people just throw in the towel. The police officer may have explained that the roadside test wasn’t reliable but nobody is suggesting that THIS machine has got it wrong. You may be left in a cell for the next few hours then handed a slip of paper and told to be in court or face arrest.

However the breath test, the alcohol blood level test, the alcohol urine test and the roadside tests all have potential pitfalls. It may be in the method of use, the procedures not being followed as they should be or it may be simple operator error. Whatever the problem a good defence team needs to find it and exploit it to win the case. Winning or losing a road traffic case comes down to the lawyers determination to investigate every angle and fight every legal argument.

Did you know that the results of a breath test can be challenged. The Log Book detailing all tests that day can be examined by the defence to check for signs of flaws or tampering. The service record for months before and after the test can be examined. Experts can be instructed to check the analysis machine itself and checks can be made reading the police procedures at time of testing. We have even had experience of an entry that had been “tippexed” then changed. We are not advocating a “Fishing expedition” but when our clients challenge the accuracy of a reading then they can expect that no stone will be left unturned.

The cost of defending such a case can be considerable and we can tell you that it will undoubtedly run into thousands of pounds however with so much at stake it can be worth investing that money in your defence.

Think how much could be saved over the term of any ban. Not just the inconvenience of not having a licence but all that depends upon it, job, mortgage, relationships etc. Of course it is more costly to defend a case than to plead guilty at the outset but this is because of all the extra work and court time that will be involved. We are often asked if pleading not guilty will attract a higher sentence if convicted and the answer is no. You are entitled to defend your case but what you must be aware of is that the court will not punish you for taking a case to trial but they will reward you for tendering an early plea. That reward does not mean that they will reduce a mandatory minimum period of ban but may mean that the fine imposed is less than it would have been.

Hire the best and in our view that means getting a specialist lawyer on board as soon as possible.

Assuming The Police Always Get It Right

* the correct sample procedure was not followed.

* the results indicate that the device was not properly calibrated

* your breath sample was interrupted e.g. sickness

* you had something in your mouth, such as chewing gum, tobacco etc.

* you were on a special diet.

* you have diabetes, asthma, other relevant medical condition.

* you have ill fitting dentures.

* you had close contact in a confined space with paint or solvents.

* you have to take medicine on a regular basis.

* an alcohol antiseptic was used when blood was drawn.

* an alcohol antiseptic was used by you when washing

By not contesting the evidence you don’t get to question the arresting officers. You will not be entitled to say that you accept that the results are partially correct but that they do not accurately reflect what you had to drink. You would therefore accept whatever the reading was and accept that all procedures were followed properly.

Plead not guilty and a trial is set where the defence will get the chance to interview the police officers and examine the physical productions ALL before you attend court. You will then have the opportunity to attack the results on the grounds that the technical rules weren’t followed. If your lawyer considers that all procedures were followed and that there is no technical defence then the lawyer can have the case brought forward to tender a guilty plea and secure any sentence reduction for an early plea.

Thinking The Breath Analysis Machine Is Infallible

Wrong. I can’t think of a machine that hasn’t broken down sometime! All the defence require to do is show the Sheriff that there is room for a “reasonable doubt” regarding the reliability of the machine and your licence is saved.

Laymen and even lawyers are sometimes guilty of failing to read the piece of legislation that the case relates too. The law in relation to drink driving cases, of course requires to be fully understood however all the statutes and the regulations governing the use of technical equipment requires to be read and understood. The lawyer needs to know what is and what is not admissible evidence-This is not always easy and again experience tends to be the key to success.

Those that don’t know the laws and regulations don’t realise that violations of the rules introduce into evidence matters that can be suppressed from the trial on the grounds of fairness to the accused.

Since the intoximeter devices are “type approved” there is now a statutory presumption that they are reliable and that they work properly. Therefore to defend such a case you need to get copies of the various logs, maintenance records, printout of sample taken etc. This is not easy as the Crown will refuse to provide these documents if they consider that this is a “Fishing expedition” where the defence are just looking for some kind of get out!

My own view is that we should be entitled to obtain all such documents, even if it were a so called “fishing expedition” since this is how we the public have any chance of establishing that the correct procedures and proper working equipment has been used. Sadly, it has been known for lawyers and unrepresented parties to just have the complaint and the arrest report, this again emphasises the need for an experienced court solicitor to be instructed from the outset.

Not Objecting To Evidence At The Correct Time

If you do not know the law in relation to what and how evidence is should be led, how can you possibly tender a proper and timeous objection? If you don’t get this right you can easily be convicted before you realise the error of your ways.

Not Personally Checking Out The Arrest Location

The lawyers call this a locus attendance. Many people don’t visit the arrest location. This can be crucial. In road traffic offences we often go to the scene with our clients to take relevant photographs, video and draft diagrams. With the advent of Google Maps we now find that printing off some satellite photographs can also assist the case preparation. Police officers are often trained to refer to the “off side” or the “nearside” when describing the vehicle and position in relation to the offence, the accused might say left or right and another witness might say East and West. Thats why we always have Maps, Photographs and diagrams. It makes sense of all the left, right, nearside, offside, middle and don’t knows that we will have to deal with at the trial. Drunk in charge cases can sometimes involve a piece of land where the public do not have any right of access but this might only become plain once the area is visited. We tend to video the location for most cases. We had one case where our client was found intoxicated in his vehicle in a private field. The Crown allegation was that our client must have been drunk in charge of his vehicle to get into the field in the first place! What they didn’t know was that he had driven his friends to meet a helicopter in this field and when the helicopter returned later that evening (Much the worse for wear) he didn’t feel inclined to walk home so he slept in his car, dropped off in the field by a helicopter.

Roadside Tests involving walking a straight line and the like are becoming increasingly used in Scotland. Seeing and knowing the locus allows you to bring better cross examination to court as you can test witnesses on true conditions that existed. e.g. sloping, ill lit roadside that is very busy with traffic…..it may be reasonable not to be walking on the kerb? These things makes it much easier for your lawyer to understand and more importantly the Sheriff to understand your concerns about any roadside test, and, in some cases, point out a physical impossibility to the Sheriff. We had one case where the police officer admitted that he requested our client to walk a straight line inches away from a dual carriageway. Needless to say the Sheriff wasn’t too impressed by this and threw the case out.

Not Explaining The Du Plooy Discount

Your lawyer should advise you about the sanctions resulting from a conviction as opposed to an early guilty plea. (The Du Plooy case)

Why are these important?

If you have previously been convicted for drink driving in the past ten years and you choose to go to trial with a very high reading and no real defence then expect incur the wrath of the Sheriff. A good experienced solicitor will always know when it would be appropriate to tender a plea, particularly if you are a border line jail case. It might just mean the difference between your liberty and several months in jail.

And this mistake can happen all to often if your lawyer is rushed or is a duty solicitor with very little time for each client. We have acted as Duty solicitor and we know how tough it is to get through maybe 30 to 40 cases in an afternoon. Recently Duty Solicitors in Glasgow have been dealing with even more than this number meaning that on average each client is likely to have approximately 2-3 minutes with the duty solicitor to prepare a plea in mitigation that could mean the difference between jail or freedom.

You Giving Evidence

Police officers are usually the guys giving evidence against you and it really isn’t like on TV. They will not break down and say that they made it all up nor are they likely to be moved from the statement that they provided to the Procurator Fiscal’s office when they reported your case. They are experiences in court and are even trained in court craft whilst at the police college. You on the other hand have probably never been in a court in your life let alone stood in the dock to give evidence. I once required to give evidence myself and found it to be surprisingly nerve wracking. Therefore, in my opinion it is generally not a good idea for the accused to give evidence in Road Traffic cases. If you claim that the police are lying in their testimony then the court will want to hear why you are saying that and be allowed to assess your character in the witness box. There is no strict rule therefore that says the accused should not give evidence it is something that has to be very well considered.

Lawyers are not allowed to coach their clients on how to give evidence however if you do think that you are going to have to give evidence it would do you no harm to attend court and sit in the public benches to see how other cases are conducted.

Is there ever a good time to put the accused on the stand? Yes, to directly contradict something the officer said.

Not Consulting A Specialist

Defence lawyers who are experts in Road Traffic Law say that someone who isn’t a specialist should consult one. We have been consulted and have acted for fellow lawyers, police officers, relatives of judges and forensic scientists. Although these people have an intimate knowledge of our judicial system and criminal law in particular they still wanted a specialist.

Gone are the days when people had “a lawyer” someone who dealt with everything from their will to their conveyancing to setting up their business. Today people seek out the experience and know how of specialists because they are aware that in todays’ world we are swamped with information and keeping abreast of all areas of law is simply impossible.

When I started out in law I specialised in Criminal Law. I was told by colleagues that there wouldn’t be enough work to keep me fed and watered but I stuck with it and nowadays Criminal Law Specialists are all over Scotland.

In 2001 when I set up the first road traffic law website those same people told me road traffic law was too small an area of practise to specialise in. I have found the opposite to be true. It is an area that is constantly evolving and requires a more intimate knowledge of law, evidence and procedure than any other area I have been involved in. The challenges are constant, varied and incredibly interesting.

The benefits to me as a lawyer are that this area of law is well valued by the public and I find that I have seldom received any negative feedback regarding the value for money that we offer. Quite the opposite is true as you can see from our comments page.

If your lawyer is not a specialist in this area, you may not be getting the best advice and you may not have the strongest case.

Hire the best lawyer that you can afford.

Written by Graham Walker , Solicitor www.roadtrafficlaw.com , 0800-6129597

Graham Walker LLb,DipLP,NP

Drink Driving in Scotland: a Recent Case Study by Michael Lyon Solicitors, a Firm of Specialist Road Traffic Lawyers in Scotland

The Charge: on xxx 2008 on a road or other public place, namely the Kingston Bridge, M8 Motorway, Glasgow you xxx did drive a motor vehicle, namely motor car registered xxx after consuming so much alcohol that the proportion of it in your breath was 86 microgrammes of alcohol in 100 millilitres of breath which exceeded the prescribed limit, namely 35 microgrammes of alcohol in 100 millilitres of breath;

CONTRARY to the Road Traffic Act 1988, Section 5(1)(a)

The Brief: Michael Lyon Solicitors were instructed to defend the case as recognised specialist road traffic lawyers in Scotland.

The Evidence: The Police statements detailed a sequence of events that confirmed the correct procedures had been followed. From initial arrest to subsequent caution and charge, there was nothing exceptional. The intoximeter forms confirmed the terms of the statements.

The Outcome: The case proceeded to trial at Glasgow District Court in October 2008 and our client was found not guilty of drink driving. A submission of no case to answer was upheld. We are not willing to disclose the basis of our defence although can confirm we have had success in various Courts in Scotland with the same point.

“I contacted Michael Lyon Solicitors through a media friend who Michael had defended a number of years ago. I really didn’t hold out much hope as I felt that I would simply have to accept the inevitable. I was aware the allegation of drink driving was serious and was probably only looking for a bit of damage limitation.

After six months of various Court hearings, the case finally proceeded to trial. Michael had discussed with me a technical defence in relation to drink driving cases and we decided to proceed on that basis.

To my utter delight, I was found not guilty of the charge.

Words cannot express my sincere gratitude for saving my licence and livelihood. For anybody out there looking for a specialist road traffic lawyer in Scotland I would urge you to contact Michael Lyon Solicitors. Having had the pleasure of seeing Michael in action, I can only say that I was, and remain to be, amazed by his level of expertise. The guy is, quite simply, The Road Traffic Lawyer in Scotland.”

We were delighted with the outcome of the case and wish to thank our client for his kind words and support.

Michael Lyon Solicitors Limited exclusively practices road traffic law and defends all types of motoring offences throughout Scotland. All Solicitors within the Firm have an expert knowledge of road traffic law in Scotland with a particular focus drawn on speeding, dangerous driving and drink driving allegations in Scotland.

Specialist legal representation provided in all Courts for motoring offences in Scotland including Glasgow, Paisley, Dumfries, Perth, Aberdeen, Invernesss and Kilmarnock.

W: http://www.theroadtrafficlawyer.com

E: ml@theroadtrafficlawyer.com

A: Michael Lyon Solicitors Limited, 272 Bath Street, Glasgow, G2 4JR

T: 0141-550-1074

M: 07903-818-719 (Urgent cases only)

Careless Driving in Scotland

This is a complex and serious area of law therefore we offer FREE online advice in relation to such cases. Accused of being a careless driving in Scotland? Then ask us about your own case right now!

What Is Careless Driving?

Careless driving charges are traditionally brought as a result of accidental or careless acts and consequently often follow unintentional incidents such as collisions, accidents and general instances of poor driving habits. Sheriff Gordon once described Dangerous Driving as “Bloody awful driving” and Careless driving as “Awful driving”

For example, an unintended road incident which has resulted in no serious damage or injury may incur a charge of careless driving or driving without due care. Accordingly, in order to secure a conviction, it need not be established that the driver is guilty of a deliberate act.

The definition of ‘careless driving’ is contained within section 3 of the Road Traffic Act (RTA) which defines careless drivers as ‘those who drive a motor vehicle on a road in a manner that falls below what would be expected of a competent and careful driver’ or ‘those who drive without reasonable consideration for other persons using the road or place‘.

Essentially, it must be shown that the driver departed from the standard of a reasonably prudent and competent driver in all the circumstances of the case.

In order to secure a conviction for careless driving it must be shown that other persons have been inconvenienced in some way by the accuseds’ driving. Circumstances known to have been within the knowledge of the accused must be taken into account, however their age, experience or physical or mental health is irrelevant as are their views on what happened. The Highway Code can and is used as a guide to acceptable driving behaviour but failure to comply with the code will not automatically lead to a conviction (S37(7) 1988 RTA). The penalties for careless driving include fines of up £5,000 and between 3-9 penalty points or a discretionary driving disqualification depending on the severity of the offence.

Police Procedure

If you are involved in a road traffic incident the police may wish to interview you under caution if they feel that there is a reasonable suspicion you have committed an offence. If you refuse to attend on a voluntary basis they may decide to arrest you in order to carry out the interview. In this event you will NOT be entitled to free representation by either the local Duty Solicitor or a solicitor of your choice. Similarly you are NOT entitled to a solicitor to be present with you during questioning. You are however entitled to see a solicitor before you appear in court. These minimal rights are often misunderstood by the general public, but explained, on some occasions, with some glee by the arresting officers. Fortunately the discretion of the duty officer is often exercised against both in the interests of the accused and ultimately the interests of justice by allowing access to a solicitor at this time. Choose your solicitor now as the police will not provide you with a list of experienced solicitors or a copy of Yellow pages! Do your research now and keep the details of an experienced road traffic lawyer in your mobile phone. Ask friends and relatives who they would recommend or just get on the internet and do the homework required. Google Ads are just that-Ads go to the actual websites and see if the lawyers seem to know what they are talking about then arrange to meet with them if you have a case outstanding.

Our own contact number is 0800 612 9597 and you can ask us questions online right now.

Death by Careless Driving Crimes and the Penalties

Causing death by careless driving under the influence of drink or drugs (S3a RTA).

As this is such a serious offence the Court must disqualify for a minimum of 2 years and may impose a prison sentence of up to 14 years and/or an unlimited fine. The Court may also order an extended re-test on disqualification, which involves passing a theory test for the category of vehicle you intend to take and a more demanding test than normal. The test lasts about 70 minutes and covers a wide variety of roads, usually including dual carriageways. You are advised to prepare by taking suitable instruction from an approved driving instructor (ADI). Where prosecution for the offence has been unsuccessful the alternative verdict of causing death by careless driving is permitted. This is significant as it ensures that drivers who may otherwise have escaped conviction can still be sentenced for the lesser offence.

Causing death by careless, or inconsiderate, driving (S2B RTA).

The Road Safety Act 2006 creates a new offence of causing death by careless, or inconsiderate, driving. This crime attracts obligatory disqualification and has a maximum penalty of five years imprisonment. An alternative verdict of careless driving is permitted where prosecution for the offence has been unsuccessful. This crime is new, coming into our legal system as recently as August 2008. It is a relatively controversial piece of legislation due to the threat of imprisonment for a crime that does not require any criminal intent. Accordingly before this legislation was enacted the Scottish courts were essentially unable to take the consequences of careless driving into account in their sentencing for the obvious reason that the driver did not intend to commit the offence and that his driving did not fall far below what a reasonably competent driver would have done in the same circumstances.

Causing death when driving when unlicensed, disqualified or without insurance (s3ZB RTA).

The Road Safety Act 2006 also creates the new offence of causing death when driving when unlicensed, disqualified or without insurance. This offence has a maximum penalty of two years imprisonment and/or an unlimited fine and, as the previous two offences, provides for obligatory disqualification and endorsement. Unlike the other death by driving crimes however this offence is not linked to the standard or quality of driving on the part of the accused and culpability arises from the offender driving a vehicle on road when by law he is not allowed to do so. Again a controversial approach due to the risk of imprisonment for what may be a genuine oversight or error. E.g. direct debit failed to meet your insurance premium and the insurance company cancelled the policy!

Mitigating Factors

In determining any penalty there are a number of criteria the Court will take into account as aggravating factors. These can include consumption of drugs or a prolonged, persistent and deliberate course of very bad driving, or even driving while your attention is avoidably distracted. Serious injury to any victims is also taken into consideration. You will normally be given credit by way of mitigation if you have a good driving record and have entered a plea of guilty at the earliest possible opportunity (Always seek out legal advice on the case BEFORE tendering any plea).

In the exceptional event that a ‘causing death by careless driving’ conviction does not result in disqualification the Court can award between 3-11 penalty points instead. This could occur in the following circumstances:-

1. Special reasons exist.

2. If the offender is aiding and abetting the offence.

3. If the offender is subject to provisions under the Mental Health Act 1983.

Advice

It should be remembered that if you have been involved in an accident or if the quality of your driving is under scrutiny, whatever you say at the scene is often crucial. It will be helpful to your defence to make a detailed note of what you said to the police or anyone else at the scene as soon as possible after the incident whilst events are still fresh in your mind. In addition to this photographs of the location or any damage, details of lighting and weather conditions and the contact details of any witnesses are always useful in the event the case proceeds to trial.

Finally, it should be noted that if the evidence against you is overwhelming it may be advisable to plead guilty in order to maximise your credit and minimise the penalty. It is often worthwhile to seek advice on whether you should plead guilty or not guilty. Whatever you do it is ALWAYS advisable to obtain free legal advice from a reputable solicitor, particularly one who specialises in road traffic law on a daily basis.

Online Street Maps Could Help Cure you of your Driving Fears

When it comes to planning your summer holidays, making decisions can be difficult. Whether you’re travelling with a large family, a big group of friends or you’re simply taking a peaceful holiday for two, it can be just as hard to decide how you’re going to get to your destination as it is to decide where you’re going! If you’re travelling within the UK, then driving could be your easiest option in the way of transport. For starters, driving will ensure that you avoid any crowded trains and coaches, as well as making sure that you’ll always have space to stack your luggage!

However, many UK travellers are put off the idea of a driving holiday for a number of reasons: as well as the forbidding spectre of traffic jams, many drivers are wary of taking wrong turns and getting lost. A simple drive from Newcastle to Edinburgh, for instance, could well turn into an aimless excursion to the Scottish Highlands if you don’t follow the right directions. What’s more, many drivers may be reluctant to let their partner or designated right-hand man read out directions from a road atlas during the journey.

But, while these worrying factors can cause some significant concern to drivers – especially those that are prone to stress – the internet has made it much easier for people to take a successful driving holiday. Today, drivers will find a variety of UK street maps services online – each of which offers a range of services to make planning your journey easier. You’ll be able to find simple directions from A to B, and some online street maps will even offer a specific journey planner service so drivers will be able to plan out their journey for every twist and turn.

Online street maps eliminate the element of unpredictability that many ordinary road atlases may throw up. For instance, if you’re planning a long journey – say, from London to Penzance – mapping out your journey in detail using an online street map can ensure that your trip takes as little time as possible. Many online street map facilities will even tell you how long it takes to get from your home to your holiday destination, so you’ll be able to accurately estimate the appropriate departure and arrival times on your journey.

What’s more, many online street maps include clear aerial photographs of locations – which means that drivers will be able to familiarise themselves with images of their destination before they arrive. Plus, online street maps are more likely to carry up-to-date details of road-works or changes to a road’s layout – something your atlas won’t be able to help you with!

Utilise an online street map service effectively, and you might even discover alternative routes to your holiday destination. For example, if you’re driving from Leeds to Blackpool and you anticipate getting stuck in rush hour traffic near Manchester, you’ll be able to figure out an alternative route. And if you’re using online street maps that are integrated with aerial photography, you can even find more scenic routes before you leave the house.

So whether you’re taking a seaside holiday in Cornwall, visiting Mount Snowdon in Wales or exploring the Western Isles of Scotland, consult an online street map to ensure that the drive to your holiday destination is as efficient – and enjoyable – as possible.

life-in-scotland.info

Scotland Links

Categories

Sponsored Links

Site Sponsors

Vegas Next Trip?