Expert Witness

  The eventual effect of continuous excess alcohol consumption is that the liver can’t take it any more and slows down its processing, because it’s damaged. This means the alcohol remains in the body for longer. Many alcoholics have a residual blood alcohol level, so after a night out on the pop, they carry over alcohol in their bloodstream to the next day and then they start drinking again, adding to their blood alcohol level. I expect many of them never reach a zero alcohol level. It’s worth remembering that these aren’t necessarily the people you see sleeping on park benches. It’s just as likely to be someone who drinks a lot every evening yet can still get up and function seemingly normally the next day — it’s just what the body becomes used to. The real problems for them would start when they reduced their intake and their body would have to readjust, which, as anyone who knows someone who’s gone dry, is a tough process.

  Compared with England and Wales, drink-driving cases in New Zealand are relatively straight forward. Generally speaking, if you are stopped by the cops and you’re over the drink-drive limit, you’re guilty on the basis of a conclusive presumption, which means that your level at the time of the offence is taken to be the same as the reading that shows up on the blood/breath-testing device. In New Zealand, there is pretty much no way to challenge the breath or blood alcohol result.

  New Zealand law is tempered somewhat by the ability to apply for a limited licence (also known as a work licence). If you are granted one of these then you can carry on driving, but with limitations. Legal grounds for such a licence are that if you are not granted one, you will suffer extreme hardship, or your family will suffer undue hardship.

  In England and Wales there is no such luxury. However, there are three defences to drink driving written in to the Road Transport Act 1988. These are post-incident alcohol consumption, also referred to as the ‘hip flask defence’, spiked drinks and Drunk In Charge. For the lawyers among you, the legislation reads:

  Driving or being in charge of a motor vehicle with alcohol concentration above prescribed limit

  (1) If a person a) drives or attempts to drive a motor vehicle on a road or other public place or, b) is in charge of 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 he is guilty of an offence.

  (2) It is a defence for a person charged with an offence under (1)b) above to prove that at the time he is alleged to have committed the offence the circumstances were such that there was no likelihood of his driving the vehicle while the proportion of alcohol in his breath, blood or urine remained likely to exceed the prescribed limit.

  A lot of readers may have just skated over that last bit but in order to fully under stand the law, please read it again. Then remember that there is an important assumption made by the law — that for the purposes of defending a drink-driving charge, the amount of alcohol in the driver’s body at the time of the incident will be taken to be not less than that recorded by the evidential specimen of breath, blood or urine.

  To make that last bit mean some thing, a practical example of that would be Mr Smith, who drank 10 pints of beer, got into his car and tried to drive home. He drove into a wall at 11.30 p.m., stalled the car, couldn’t get it started again and decided he’d make a surreptitious escape and because he’s drunk, thinks no one will ever know it was him — forgetting that he’s left the car behind. The police come along on a routine patrol, find the car, establish no one’s in it and find the address of the registered owner. They pop along to Mr Smith’s house and find him asleep on the lawn. Mr Smith wakes up, provides a positive sample of breath to a handheld alcohol-screening device and is assisted to the police station. Once at the police station, he provides a sample of blood. The sample is analysed and found to contain not less than 100 milligrams of alcohol per 100 millilitres of blood — the legal limit is 80 so he’s potentially guilty of drink driving. The Crown will prosecute Mr Smith on the basis that his blood alcohol level at the time he provided the blood sample was not less than 100 and that his level at the time he crashed into the wall was therefore also not less than 100.

  Drunk In Charge

  Number (2) in the bit of legislation I quoted previously is commonly referred to as being charged with DIC and it’s the easiest one to deal with. Basically, if a person drives into town, goes out on the pop, drinks all their taxi money, decides not to drive home (very good) but instead goes to sleep in the car until they wake up, they can still be charged with being DIC. Even if the keys are not about their person or if they are asleep in the back seat with the car keys in their pocket, they can be guilty of this offence.

  At first glance this might seem a bit harsh. Think about it, though. The chances are that although the driver starts off with a good intention (not drinking and driving), they’ll wake up in the car after a few hours’ kip (or unconsciousness), cramped, thirsty, uncomfortable, wanting their bed and, most likely, still over the legal drink-drive limit. Lots of people drink drive on Saturday and Sunday mornings because they’re still over the limit from a big booze-up the night before, particularly if they drink into the early hours.

  The way drivers can avoid being found guilty of this offence is by saying that, had they not been arrested by the nice policeman who tapped on the window at 3 a.m. in the local car park, they wouldn’t have driven their vehicle home until their breath/blood/urine alcohol level was below the legal limit. They then have to say at what time they would have driven. After that, it’s over to someone like me who does some simple calculations to determine whether or not the individual would have been above or below the legal limit at the time the driver says they would have driven. It doesn’t take a brain surgeon to work out that if the driver picks a time distant enough in the future, their breath/blood/urine alcohol level will be zero, never mind under the legal limit. The problem with that is credibility and the key word in the legislation is likelihood. The magistrates (because these cases are usually dealt with by the lower courts) generally have a tough time believing that Mr Smith, who was found slumped over the steering wheel of his Nissan Micra in the pub car park at 4.30 in the morning, wouldn’t have dreamt of driving the 30 miles home for another 17 hours if he hadn’t been arrested by the police. Everyone in the court room knows there was a very strong likelihood he would have woken up when he became cold, started the engine and probably got home by about seven, just in time for a nice hangover-repelling fry-up breakfast.

  I prepared dozens of reports for cases like this and I can only remember one that I thought had a snowball’s chance of being successful. Remember I prepare reports based on the instructions provided to me, regardless of whether my report will be helpful or not. Whether my report is used is a decision for the defendant and the lawyer, not me.

  This particular case involved a guy who was staying at his mate’s place one Saturday night. The driver parked his car on the grass verge outside the house, so legally it was still on the public highway. His mate’s parents didn’t like smoking in the house and it was raining so while they had a few beers before walking to the local pub, which was 500 metres down the road, they sat in the car for a cigarette and a drink. The key was in the ignition so they could listen to the stereo but the engine wasn’t on because the car was fitted with an immobiliser that required a separate key, the key being in the house in the car owner’s overnight bag where he left it because he wasn’t going to be driving. He kept the ignition key and the immobiliser key on separate keyrings because he’d previously had a car stolen as the result of him putting both keys on the same keyring.

  The police came along, breathalysed the driver and he was, surprise surprise, over the legal limit, so he was charged with being DIC. This case actually went to court where several witnesses were called for the defence, including the driver/defendant, a garage mechanic and me. The Crown Prosecution Service would not drop the case and insisted that it be tried. It was tried and the defendant was found not guilty: the
magistrates basically asked how the defendant could possibly have had any intention of driving the car when it required an immobiliser to work and the immobiliser was in the house? Why would he have had any need to drive home when he was staying the night?

  Let’s now look at the two defences I mentioned earlier, the hip flask defence and the spiked drinks defence.

  Hip flask defence

  The hip flask defence is the term for post-incident alcohol consumption, which relates to those cases where, for example, someone crashed their car then nipped home and had a large snifter of brandy before the police arrived. They then claim the reason their breath alcohol level was over the legal limit was not because they’d drunk five glasses of wine with their restaurant dinner prior to driving home, but because of the brandy they had to steady their nerves after the crash.

  This is an extremely popular defence and there are many, many examples of its use. For magistrates hearing these cases on a regular basis, it got to be a bit like the dog-ate-my-homework story — new and apparently convincing to the student, old hat and totally unbelievable to the teacher. However, as with all these things, some cases do stand out and there was one in particular I remember. Not only did I feel sorry for the defendant, and I never usually have any feelings one way or the other — that’s my job — but I actually believed what he was saying, not that I said that to anyone: that’s not my job.

  In this case, I had to attend court to give evidence, which meant I heard the trial proceedings, including the defendant giving evidence. It transpired that the defendant’s car was found parked across the corner of a road junction, partly on the grass, partly on the road. His wife had skipped off to shack up with his best mate and had taken the children with her, without telling the defendant where she was going or that she was taking the children. The defendant drove round to the new fella’s house in case that’s where they were. It was Saturday and there was nowhere to park down this small residential road because everyone was at home, so he just ditched the car where he thought it would be OK and stormed off to the house to confront his wife (or, probably more accurately, his ex-wife). When he got there, the wife refused to let him see the children and threatened to call the police and have him removed if he didn’t leave. Not wanting to upset the children by making a big show, the defendant left, feeling rattled and angry. Rather than going home, he walked up the road to the local pub where he drank seven pints of strong beer. He said he intended to get a taxi home. The police walked into the pub while Mr Defendant was on his seventh pint and asked if anyone owned the illegally parked car on the corner. The defendant confirmed it was his, was arrested and then charged with drink driving. What would have helped his case was the landlord of the pub giving evidence to say he had served the defendant and that he hadn’t been drunk when he’d arrived in the pub. Unfortunately, the landlord was a friend of the wife’s new bloke, so no support there.

  I don’t normally wait in court to hear the outcome of a case because, professionally speaking, the outcome is of no significance — I’m there for the benefit of the court and when they’ve finished with me, they tell me so and I can leave, so I do. On this occasion, I had to have words with the barrister before I left court because there was some dispute between the bean counters at the court and my employer about who had said I should attend and therefore who would be paying the bill for my attendance — if you leave the court before getting that sort of thing sorted out then the English courts will never pay and neither will your instructing solicitor.

  The upshot was that it all turned to custard for the defendant, he was found guilty and lost his driving licence. The worst part was that he couldn’t see his children — he worked odd hours and the bus service to where his children were living was non-existent; he had to wait until he’d served his ban before he could see them, which was a mandatory 12 months (down to nine months if he took a court-approved Drink Driving Awareness course). He was in tears when the magistrates sentenced him. It was terrible. I was so disheartened when I left — and, as far as I know, the court never did pay for my attendance. The company never did any more cases heard in that court, which was good, because it was a shocker of a concrete grey box with orange, hard-seated plastic chairs and the worst tea machine south of London.

  Spiked/laced drinks

  The other defence to drink driving is the spiked drinks defence. These are the cases where people say, for example, that they only drank two pints of beer before driving home after an evening in the pub and were stopped by the police at a checkpoint only to find they were over the legal limit. Their argument is that someone at the pub must have added two double measures of vodka to each of their pints of beer without their knowledge. The problem with these cases was that usually the additional alcohol was apparently added by someone at the bar, usually a stranger, when the drinks were ordered. The thing is that pint glasses usually require filling to the top to be a pint, so where does the extra volume of liquid fit? Does the spiker slurp out a great mouthful of beer first before adding the vodka? If so, why doesn’t the drink owner notice while they’re paying for their drinks?

  There are variations on the theme of course, which were particularly prevalent after Christmas — the brandy-in-the-Christmas-pudding or sherry-in-the-trifle. Sherry in the trifle deserves some consideration because trifles aren’t baked (not usually, but anything’s possible in my experience), although there was one case where allegedly an entire bottle (700 ml) of cherry brandy was added to a trifle and the defendant ate half of the entire trifle. Anyone who has made a trifle will know that if too much liquid is added, it turns into a multi-coloured stream of sprinkles, cream and jelly. In that case, I think the magistrates ‘formed a view’ that it wasn’t really very plausible.

  Brandy on the Christmas pudding or wine in the casserole is never a flyer because these food items are heated. Alcohol evaporates very easily, particularly when heated. In fact, the whole point of pouring brandy over the Christmas pudding is to set fire to it, thus burning off the alcohol. Still, I guess people think it’s worth a go.

  In addition to the defences allowed by the law there are people who’ll give anything a go, just in case it might get them off a drink-drive charge. Here are some of my favourites from over the years from various countries.

  I had a case once where a biker had been involved with some road traffic incident or other and he had been taken back to a police station ‘for the purposes of providing an evidential breath sample, blood sample or both’. The breath-testing device wasn’t working so he was required, by law, to provide a blood sample. He said he couldn’t give a sample of blood because he had a profound fear of needles. In such circumstances, the police could have chosen to ask him to provide a urine sample instead but they didn’t exercise this option because they’d taken a look at this chap, seen he was plastered in tattoos and decided there was no way he was needle phobic. Because the defendant refused to give a blood sample and the police refused to offer a urine sample, the defendant was charged with Failing to Provide a Sample for Analysis.

  I received a phone call from the solicitor asking what I could do about it. I advised that although as a forensic scientist I couldn’t do anything, I was aware that having a tattoo needle hammering into the skin isn’t the same as having a needle inserted into a vein for the collection of a blood sample. With needle phobia it’s not just the action of the needle in the skin, it’s the psychological aspect as well, which is often the thing with which people seem to struggle. Phobias are often irrational.

  I suggested the solicitor seek a professional medical opinion, which he did. The case came to trial and the defendant was successful because the medic distinguished between needles involved in having a tattoo and the manner in which a blood sample is taken from a vein. Maybe the defendant had been drink driving, but he wasn’t guilty of Failing to Provide because he had a real medical condition that precluded giving a blood sample. If only the police had asked him to pee in a pot.

 
Here’s an interesting one, an English case. Solicitor calls. Their client is a Jehovah’s Witness who failed a breath-screening test, which means alcohol was detected in a breath sample he blew into a roadside-screening device that is extremely reliable in detecting alcohol — if the test showed a fail then the driver has consumed so much alcohol he’s over the legal limit to drive. The police station breath-testing device wasn’t working so the driver was required to provide a blood sample. He refused on religious grounds. The driver was required to provide a urine sample. He refused on religious grounds. Can I help? My response: why did the defendant fail a breath-screening test when he wasn’t supposed to have been drinking alcohol to excess anyway, as drunkenness is forbidden as part of the same set of religious beliefs he was quoting? Seems to me he was being a mite selective in applying the tenets of his faith. Human beings eh? We’ll try anything!

  A common misconception is that a woman’s menstrual cycle somehow affects her blood alcohol level, and there has been specific research to address exactly this issue. It’s also a well-known fact that women’s moods can change, sometimes rapidly, at various parts of their cycle and I remember some research shown as part of a TV programme that assessed whether diet made any difference. Apparently, it does — eating dairy products at certain stages through the month can reduce the effects of mood swings, although they won’t necessarily get rid of them altogether. But can the menstrual cycle, on its own, adversely affect a woman’s blood alcohol level? In a word, no. It just affects how you feel, not the actual numerical blood alcohol concentration.