Sep 12 2023

Case report – MN in charge with excess alcohol

MN approached us having been charged with being drunk in charge and failing to name the driver at the time an offence was alleged to have been committed.

A member of the public called police to report that MN’s car had been involved in a crash earlier in the evening and had driven away. Police located the heavily damaged car at the side of the road and found MN along with another man standing next to the car. MN agreed it was his car but denied being the driver at the time of the crash and claimed he did not know how his car got to the location. Perhaps not surprisingly, police did not believe that claim and required him to provide a specimen of breath, which showed he was over the drink driving limit. A further test at the police station indicated that MN was double the drink driving limit. On the police’s account, they made a formal requirement for him to identify the driver, which he declined to do.

MN initially used a different solicitor while he was at the police station. After MN followed that solicitor’s advice, the police decided to charge MN with being drunk in charge and failing to identify the driver.

MN came to us after he had been charged but before his first court hearing. He instructed us that he had not been driving the vehicle and was not willing to name the driver. He told us that he had been sleeping in the rear of his car before police arrived and had no plans to drive it that evening. We discussed the police procedure both at the station and during the interview. MN was adamant that no formal requirement for him to name the driver had been made – the police had not advised him that they were making the requirement under section 172 of the Road Traffic Act 1988.

We reviewed the evidence and discussed our approach with MN. His objective was to avoid conviction for both offences. We put forward his defence that there was no likelihood of him driving while over the drink driving limit. We also disputed whether the police had properly made a requirement under section 172 for MN to name the driver. We pointed out errors in timings between the known times in the case and the police officers’ statements. We also disputed police claims about comments MN was supposed to have made at the roadside. We indicated that we would require disclosure of video evidence from the officer’s body worn cameras and the recording equipment at the police station. We also required a copy of the interview from the police.

The court set a deadline for the Crown to serve their evidence. The deadline came and went without a word being heard from the prosecutor. We raised the lack of disclosure with the court pointing out that MN could not have a fair trial if the prosecutor did not serve their evidence. We copied the prosecutor into our correspondence with the court. We pointed out that we would be seeking to exclude prosecution evidence of the breath test since no evidence of how it was conducted had been served. We would also seek to exclude the evidence of the interview where the requirement to name the driver was supposed to have been put to MN, because again we had no copy of that and so could not prepare to respond to it.

Having considered their position, the prosecutor decided to drop the case against MN.

The court recorded a not guilty verdict and ordered the prosecutor to pay MN’s legal costs.