Expert Witness

  There is a defence to drink driving I encountered several times in England and Wales, not actually directly related to the drink-driving offence as defined in the Road Traffic Act, but in relation to the ability to provide a sample of breath for analysis. If someone refuses to provide a sample of breath for analysis, they can be charged with Failing to Provide. However, there were many occasions when someone said that they hadn’t refused; they were just too drunk to be able to coordinate their lungs to provide a satisfactory sample. I remember one Christmas when we had our work’s Christmas do and one of the group drank a lot of wine, probably followed by a chaser of some sort. We used to take the handheld breath tester along with us to see how accurate the breath alcohol calculations were. You have to ask how sad is it that our idea of fun at a work party was to calculate our breath alcohol levels, but there you go, that’s scientists for you. Anyway, that particular year my colleague tried to blow into the breath tester but was so drunk he just couldn’t do it. He really tried but he had totally lost the ability to coordinate his mouth and lungs for the time required to provide a satisfactory sample. The point of the story is that he genuinely wouldn’t have been able to provide a satisfactory breath sample to either a handheld screening device or an evidential device, similar to the ones they have at the police station. Although he would technically have been guilty of Failing to Provide a Breath Sample, should the fact he was too drunk be a defence? Most judges think not. And, yes, we all took taxis home.

  Petrol consumption is a defence that’s cropped up a few times, mostly by people who don’t realise that drinking petrol tends to trigger the body’s vomit reflex, thus expelling said petrol and any alcohol remaining in the stomach. The police are often interested in people who have been drinking petrol, just in case the petrol was being drunk from a vehicle other than the driver’s own.

  There have also been several cases involving gas stoves in camping situations. The version of events is some thing along the lines of the gas bottle needing to be changed but it let out a bit of gas during the change and because the person was in a tent at the time, which was an enclosed space, they inhaled the gas and it adversely affected their blood alcohol level. The main issue the courts seem to have with this is that the campers have usually been drinking the night before, they’ve got up early the next day because that’s what happens when you camp — donkeys and cockerels and such like insisting on marking the start of the day in some inhumanely vociferous manner at the crack of dawn, and need to go to the shop for some reason. Unfortunately, these campers tend to be carrying over a bit of last night’s alcohol in their blood supply, which is the reason for being over the drink-drive limit — nothing to do with gas canisters. In fact, at least one police force I know of used to stop campers on their way home from picturesque forest locations on a Sunday morning because they knew very well they’d have a pretty good hit rate on drivers over the legal limit.

  New sweets on the market (or some times even old favourites) were usually a pretty fair bet for a drink-drive defence. Extra strong mints, Victory V lozenges, the sort of chewing gum that has sugary liquid in the middle — all have been the subject of drink-driving defences, along with many others. The girls in the office used to love these cases because the only way to know if there was an effect was to try the sweeties of the moment and then blow into the breath-screening device. The sweeties were paid for out of petty cash and we had multiple samples because everyone wanted a go. I never managed to convince anyone that I should try it with a bar of Dairy Milk, though, which was a bit disappointing.

  It’s amazing the number of drink drivers who think the reason they were over the legal limit wasn’t anything to do with the alcohol they poured into themselves but must be because they have a ‘slow metabolism’. To be fair, statistically speaking, some people do eliminate alcohol at a lower than average rate, which means it’ll take their bodies longer to eliminate a glass of wine than the next person.

  For those who are very insistent on this as being a reason for drink driving, we as scientists can make an assessment of an individual’s breath alcohol elimination rate. This usually involves the person in question coming in to the office to undertake some tests. The procedure has been honed to its present standard as the result of bad experiences in the past, mostly, thankfully, that occurred before my time. Back in the day, a previous colleague had such a procedure-defining case, which involved a local businessman. He was well known for having a few too many sherries at lunch time and he’d finally been caught driving with excess breath alcohol (the businessman, not my colleague). The man came in to have his breath alcohol elimination rate tested, which involves drinking a calculated quantity of vodka at about nine in the morning and then sitting around for several hours and providing breath samples to a handheld device every 30 minutes or so. Once the breath alcohol level falls below the legal limit, the subject can leave and we use the results to calculate the average breath alcohol elimination rate. The calculations will only have any meaning if we, the scientists, can be sure the subject hasn’t been drinking before they arrive, and doesn’t consume any more alcohol after the test has started.

  To address the first possibility, we ask people to undertake a breath test before we get started, just to make sure they blow zero. In the case of this particular man, he provided a zero breath reading, as required. After he’d drunk his early morning vodka he asked if he could nip down the road to get a paper, because he hadn’t realised there’d be so much sitting around with nothing much to do. My colleague, being a trusting sort, agreed and so off went the man down the road. Ten minutes passed and he hadn’t returned; more time passed, no man. So my colleague went into the street to see if he could find said stray man, and there he was, round the corner, face down on the street, reeking of medication and booze. As it turns out, the man had decided he wanted his breath alcohol elimination rate to seem slower than average, so he’d brought some horse liniment in his jacket and was swigging it while he wandered off to the paper shop. Seeing as horse liniment wasn’t made for human consumption, it had a bit of a bad effect on him and he passed out. My boss called an ambulance, which pretty much called a halt to the breath alcohol experiment. The testing procedures were adjusted accordingly; subjects who come for breath alcohol testing are now kept in sight the entire time they are ‘in test conditions’, including being accompanied to the toilet, should their need be pressing.

  After many years of working in forensic science, I still maintain that alcohol-related cases are the most complicated, because of the calculations, how many things have to be taken into consideration and the sheer range of variables. However, they are also among the most interesting, because it’s amazing what people do when they’ve been drinking.

  Chapter 9

  The pieman and the circus

  This story starts as a common-or-garden drink-driving case. The solicitor’s instructions described a defendant who was an alcoholic, in the true sense of the word. She’d driven her monstrous four-wheel-drive vehicle down a country lane at four in the afternoon while soaked to the eyeballs in lunch-time (and possibly breakfast-time) vodka. On her jolly little sojourn, she’d side-swiped a cyclist and, because of her erratic driving and general careering into hedgerows, he was able to keep up with her until she got home, which was a caravan in the garden of a burnt down house. The cyclist, being an assiduous sort, called the police and waited for them to arrive, all the while keeping an eye on the caravan and its occupant. While waiting, the cyclist saw what turned out to be the driver’s daughter arriving in another vehicle, enter the caravan and then the police arrived.

  In due course, I received instructions regarding what the driver said she’d drunk before driving (two glasses of wine in the pub) plus what she said she’d drunk after she got home (11/2 litres of vodka in 20 minutes) before the police arrived. Based on what she said, her breath alcohol level would have been below the legal limit at the time of the driving incident, so I was asked to attend court to
give evidence for the defence. This was where it got weird.

  The trial was to be heard in a lovely semi-rural court with easy parking, good sandwiches and a nice jewellery shop over the road. I arrived at the appointed and standard 9.30 a.m. to find an ambulance outside. Thinking nothing of it, I made my way into the court building and made myself known to the people with the clipboards.

  I then went to see if I could track down the barrister. This is often a challenge because it’s not unusual to be instructed by someone I’ve never seen and vice versa. I eventually found a tall, solid-looking man pacing around and talking on a phone to someone about event organisation, who seemed to be insisting that yes indeed, pink champagne was a must, given the colour of the dress. Turns out that the barrister in question had a parallel career, which was apparently far more interesting than the case at hand.

  After he’d finished ordering white lilies and pink carnations for a sixtieth birthday he was also organising, I asked him where the defendant was. Time was ticking on, we should be getting into court and generally speaking it’s barristers who fuss about the time, not me. ‘Oh,’ he said casually, ‘that’s her in the ambulance outside. She fell over in the road on the way in — pissed.’

  I was a bit shocked at this because if a person is up in court for drink driving, even the most hardened soaks try not to sup anything before the trial begins, certainly not until the lunch break, although there was another case when court security had to physically carry the defendant out of the pub after the lunch break and into the witness box to give evidence. But here was our defendant, being carried into court by the ambulance staff. I assumed they’d ship her off home or into rehab or something, but they didn’t. They carried her into court and put her in the dock because she couldn’t do it herself, yet astonishingly they considered she was fit to stand trial.

  Next thing you know, she’d been carried out again because there was a fight in our court room. The case before ours involved two rival families and they were trapped in a small venue with nothing but hormones, rage and plastic seats between them. Police from a waiting riot van charged through the front door and into the court room, accidentally knocking over our drunken defendant who, to be honest, could have been knocked over by a strong wind. Several feuding family members were removed by the available police, but not all of the family members because there were too many. In fact, one of the family took a real dislike to the prosecutor for trying to put his brother in prison because of his anger management issues. This necessitated leaping across the court room, through the doors and grabbing the prosecutor in a vice-like grip around his neck in the foyer of the court. By this time, all the police officers were otherwise occupied with various relatives, so that left the court security officers — one tall, skinny and looking about 12 years old, the other one shorter and not moving fast, either by design or lack of desire.

  I’ve often hoped no trouble would kick off in court because I don’t want to see security guards take down a crazed family member. Defendants are less of a risk because they’re generally contained or restrained in some way and have the focus of the police on them. I didn’t hold out much hope for a timely and helpful intervention by the security guards but luckily for them, the enraged family member decided to let go of his captive, possibly as the result of the growing enlightenment of imminent arrest if he was caught doing it, or more likely because of his girl friend kicking him in the left buttock and shrieking, ‘Kev, stop it you stupid fuck — you’ll get arrested. I ain’t lookin’ after the kids on me own wiv you in a fuckin’ cell.’ Kev let go.

  After the feuding squabblers had been removed or left under their own steam, the prosecutor, under standably, asked for an adjournment of 30 minutes to get himself together. The defence barrister didn’t challenge it, mostly because he was on the phone discussing the relative merits of strobe lights against disco lights.

  It’s 11 a.m. and we’re finally under way. I’d asked (admittedly two hours ago) if I could sit behind defence counsel during the trial so that I could hear the relevant evidence. This is often permitted in drink-drive cases because the evidence that is heard before me is material to the calculations I undertake and the conclusions I reach. If any of the evidence is different from the instructions I used to undertake my calculations, my overall conclusions could be different, which could have a major impact on the outcome of the case, some thing that has happened on many occasions.

  Being present in court at the very outset can be very revealing, as in this case. Defence counsel requested that the trial be adjourned to a future date on the grounds that the defendant had been found face down on the main road this very morning, not through any fault of her own but through the sheer stress of it all. The bench indicated it was disinclined to acquiesce to his request given that the matter had been adjourned several times before. Lo and behold, the cheeky bugger got up and said the previous delay had been due to his expert witness failing to submit her report on time — twice. I wouldn’t mind if it had been true but I’d only been instructed three days beforehand and this case had been going on for over a year (and I’ve never submitted a report late). I involuntarily raised my eyebrows over the back of my head, which caught the eye of the bench who, in turn, indicated that perhaps the expert herself might have some thing to say about that. And I tell you, I could see from the tensing of the barrister’s back muscles as the realisation washed over him from his toes to his head and back again that he’d totally forgotten I was there.

  Finally, the first witness was called. It was the officer in charge of the case. I was mildly amused with his description of the argument that had taken place about the defendant’s dog. When he’d arrived at the caravan, she’d insisted that her dog had to come with her to the station because it was very stressed and couldn’t be left alone. The policeman had failed to see any sign of a dog but after a brief search, he and a colleague found a pile of fur that seemed to have once been some kind of animal but had the outward appearance of being dead. The defendant refused to leave without it so they actually took it with them — it had to be carried because it was unresponsive. She also had no shoes and had to be assisted to the car because she wouldn’t walk on her own without shoes. There was no indication of where her shoes were or if any were ever found or even how she’d got from her car to the caravan in the first place.

  The officer giving evidence was a physically rounded chap who pretty much read out his statement from his pocket notebook. I’m used to my instructing lawyers turning round to ask my opinion about some thing so when defence counsel turned in his seat towards me I leaned forward; I wasn’t aware that the officer had said anything with which I could assist but maybe I’d missed some thing. I had to strain to hear what the barrister was saying, which again was not unusual. What I could finally make out was a soft, lilting rendition of Who ate all the pies? You fat bastard, you fat bastard. Who ate all the pies? You did, you fat git.

  Many things charged through my head at that point, in no particular order:

  You’re a fine one to talk, you’re not so slim yourself.

  He’s facing me, which is away from the bench. I’m facing the bench so I can’t laugh.

  The bench thinks I’m having a serious conversation with defence counsel so I have to look serious.

  What a totally unprofessional tosser.

  Shit, I hope no one can hear this idiot singing because he’s onto the second verse.

  I kid you not, and it didn’t end there. Next witness for the Crown was the cyclist who’d been side-swiped. After the original incident, he’d got out his paper and pen and written it all down, including times. This looked very good and he was a very credible witness, until it became apparent that he was just very slightly obsessed with this case — dates, times, names for every single court attendance, letter, communication he’d witnessed or received or made in relation to the matter, pages and pages of it committed to memory.

  At the time of the incident, he’d followed the def
endant and tried to talk to her at a road junction, at which point she had made it very clear (it was apparently more of a slur) that she had no interest in talking to him. I think from memory her exact words had been piss off. No matter, he gave his evidence and we all moved on and the rest of the Crown case passed pretty much without incident.

  Then it was the turn of the defence. The barrister called the defendant’s daughter to give evidence. One of the first questions was, ‘What time were you in the pub with your mother?’

  ‘About seven, we had chicken and chips for dinner,’ came the answer.

  I tried not to look up at anyone else, so I sneaked a peek from the corner of my eye to see what the prosecutor was going to say about that, because the police officer had just given evidence to say that he’d arrested the defendant at 4.45 p.m., two hours earlier than the daughter was now saying. The prosecutor was still visibly rattled about his near-death experience and never even noticed. The story then became even stranger, with the daughter saying her mother never drank vodka, even though the police had just produced two empty vodka bottles as evidence seized from the defendant’s caravan, where she lived alone, at the time of her arrest.

  When cross-examining her, my barrister asked her if she was sure about the time, to which she replied yes, and qualified it further by saying she’d heard the six o’clock news come on before she’d left the house to meet up with her mum. Sensibly, the barrister didn’t push but turned round to me and said, ‘We’re fucked,’ before promptly calling the defendant to give evidence.