Oct 31 2023

How to avoid a ban: laced drinks

This is the second part in our series on “how to avoid a driving ban”. In part one, we skimmed over various ways of avoiding a driving ban from pleading not guilty and winning your trial through special reasons and exceptional hardship. In today’s post, we are going to talk about a specific type of special reason called “laced drinks”.

A quick reminder: special reasons are an argument made during mitigation by a defendant who is facing an obligatory driving ban or obligatory penalty points. A special reason is something that the court should take into account when passing sentence, but which is not itself a defence to the allegation. It must relate to the offence not the offender. That last point is important, although the line can seem blurred sometimes. Today we are talking about something that on the face of it seems to relate to the offender not the offence. Nonetheless, laced drinks does relate to the offence because it aims to explain how the offender came to be over the limit.

What is laced drinks?

Laced drinks is an example of the misled driver group of special reasons. We are effectively saying that the defendant who is charged with drink driving was misled about the alcohol in his drink.

The most obvious example of a laced drinks argument is where a third-party adds alcohol to a driver’s drink without the knowledge of that driver. This is what many people call “spiking”. There is some evidence that spiking drinks with alcohol is the most common form of drink spiking, which isn’t something you would realise from reading media reports of drink spiking incidents.

There are other situations where a driver could be misled without any real spiking taking place. For example, if she orders a non-alcoholic beer at a bar but is served its alcoholic equivalent. Or, a punch is made for people to take drinks from and a driver is mistakenly told that the punch is non-alcohol when in fact it does contain alcohol.

You can also imagine a scenario where a smoker is given a roll up cigarette believing it to be plain tobacco but it in fact contains cannabis and is then charged with drug driving.

The emphasis will always be on the driver to show that they have taken steps to avoid driving over the limit. Therefore, if your drink obviously tastes alcoholic or your cigarette tastes of cannabis you will not succeed in a laced drinks argument. Equally, the higher the alcohol level, the more the court will expect you to recognise that you have been impaired through alcohol.

What do I need to prove to win?

To win a laced drinks case, you need to prove three things. I should say here that we are going to talk about alcohol, but the same would apply to spiking with drugs as well.

The first is that you were misled about the alcohol content in your drink. This really means that you believed you were drinking something that could not put you over the drink driving limit. This does not mean only that you were drinking no alcohol at all; it could be that you thought you were drinking plain coke, but it could also be that you were drinking beer but not enough to put you over the limit and that the alcohol level of your drink has been increased through the addition of additional alcohol. The best evidence for this is from the person who misled you or added the alcohol to your drink. So long as they did not know you were going to drive, they are not going to get in any trouble. If that person isn’t willing to come forward, you can rely on the inference that the drinks you knowingly drank were insufficient to put you over the limit.

The second point is that you must not know that your drink has been spiked. This goes beyond simply not realising that there is alcohol in your drink that shouldn’t be there. The court takes the view that holding a driving licence comes with a responsibility to take precautions to avoid committing offences accidentally. That means that you should not just make assumptions about what you are drinking, you should check. If you are told your drink is non-alcoholic but it tastes “wrong” or like it does have alcohol then you should check again and even refuse the drink if you are concerned. At the other end of the drink, if you feel you are under the influence of alcohol despite not having drunk anything the court will expect you to be alive to the possibility that you are unfit to drive and to act accordingly. This really means that if you have a very high alcohol level then it is going to be very difficult for you to persuade the court that you were not over the limit. That said though, if you are only a little over the limit then a laced drink argument will be significantly easier. This evidence an really only come from you, although you can call evidence from people who can say how you appeared and how you were acting at the time. The purpose of such evidence is to show that you did not appear intoxicated and thus there would be no reason for you to question whether you were over the limit.

The third and final point to prove is that you would not have been over the limit but for the additional alcohol. If your case is that you drank zero alcohol in the 24 hours before driving you may be able to avoid instructing an expert because it would be obvious that you were only over the limit because of the additional alcohol. However, in 99% of cases you will need an expert. We would advise you to get an expert in every case though. This is because the expert can not only say that you would not be over the limit but for the additional alcohol but they can also say either how much alcohol would need to be added to your drink to get you to the level found by police; or, the expert can say that the spiker’s account is consistent with the alcohol level recorded by police. In other words, from the defence perspective the expert evidence provides (or should provide) corroboration for the defendant’s account.

If I win, do I keep my licence?

If the court is persuaded that your drink was spiked and you did not realise then you are likely to succeed in your case. Winning, doesn’t necessarily mean you will keep your driving licence. Strictly speaking the court must then decide whether to disqualify you anyway; however, I can say that I have won many of these cases but have never seen a defendant disqualified after a finding that their drink was spiked.

If you are facing a drink driving ban and you feel that you were over the limit because you were spiked or misled about the amount of alcohol in your drink, call us today and we will do everything to help you keep your driving licence. You can reach our expert solicitors on 020 8242 4440 or send us a message via our contact page.