CASES ROAD TRAFFIC: DRINK/DRIVING: SPECIAL REASONS SPECIAL REASONS

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1 ROAD TRAFFIC: DRINK/DRIVING: SPECIAL REASONS CASES SPECIAL REASONS R -v- Wickins Cr App Rep 236 A person need not be disqualified (or disqualified for the minimum mandatory period), or endorsed, for an offence if there is a special reason not to do so. In order to amount to a special reason, the circumstance must be directly connected to the commission of the offence (not the offender). R -v- Jackson AER 453, 133 JPR 358 (see below) Affirmed Wickins, but said that what might amount to a special reason for one type of offence might not be for another type of offence, especially a drink/driving offence. (Note: Jackson is the case to refer to when considering special reasons in drink/driving cases: Jarvis -v- DPP 2000, 165 JPR 15). Section 47 Road Traffic Offenders Act 1988 If the court finds a special reason for not ordering disqualification or endorsement, or for ordering a shorter period of disqualification than is prescribed, it must state the special reason found in open court, and in the Magistrates Court that reason must be entered in the court register. LACED DRINKS R -v- Messom 1973, 57 Cr App Rep 481 Where D s drink has been laced without his knowledge, the court may find a special reason not to disqualify: DPP -v- O Connor 1992 For a laced drinks plea to succeed, D must prove: that his drinks were laced; that he did not know or suspect that his drinks had been laced; and that if his drinks had not been laced, he would not have been over the limit. Adams-v-Bradley 1975 CLR 168; R-v-Newton 1974 RTR 451; R-v-Krebbs 1977 RTR 406 A person who is going to drive later has to take responsibility for what he drinks. A person who combines drink with driving has a very heavy responsibility. It is not enough if D

2 says he did not ask what he was drinking; he must have been misled by someone as to what he was drinking. Laced Drinks, continued. Robinson-v-DPP 2004 CLR 670; 168 JPR 522 (August 2004 DRG Reports) If alcoholic drinks are available at a function, a person who is going to drive must enquire into what he is being offered to drink. He may think that it is non-alcoholic, but if it subsequently transpires that the drink contained alcohol, and D did not ask what he was being given at the time, he will not only be guilty of driving with excess alcohol (if he is over the legal limit), he will not have a special reason for not being disqualified. (Comment: There is a heavy burden on anyone who is going to drive a motor vehicle to make sure that he is under the legal limit. Thinking that the drink is non-alcoholic is not enough - he must ask what he is being given if there is any reason to suspect that alcohol might be in it (such as the fact that alcohol is being served to others). The same applies where D knew he was drinking alcohol, but was misled as to its strength. No special reason applies, because a person who is going to drive later has to take responsibility for what he drinks: Adams-v- Bradley The present case shows that, where D did not know that he was drinking alcohol, he will not have a special reason unless he asked and was told that the drink was non-alcoholic. I would add that, even if that is the case, if the alcohol reading is sufficiently high, magistrates may find that although a special reason exists, they should still disqualify, because D should have realised that he was affected and should not have driven: R-v-Newton 1974, Pridige-v-Grant 1985 RTR 196, DPP-v-Barker 1990 RTR 1, Donahuev-DPP 1993 RTR 156). AIDING AND ABETTING Attorney-General s Reference (No 1 of 1975), AER 684, 139 JPR 569 A person who laces a friend s drinks, thus causing him to be convicted of a drink/driving offence, may be convicted of aiding and abetting, counselling or procuring the offence. (Note: It will usually come under procuring the offence, where the prosecutor does not have to prove that the driver intended to commit the offence in order for the friend to be convicted). MEDICAL CONDITION R -v- Jackson 1969, 2 AER 453, 133 JPR 358 D had a liver condition, which he had not known about, that caused him to retain alcohol in his blood longer than other people, thus making him more likely to be over the legal limit. Not a special reason, because it related to the offender, not the offence. Woolfe -v- DPP 2006 EWHC 1497, 2007 RTR 16 Where a medical condition makes D liable to reflux, and the amount of alcohol consumed by D would not have given a reading in excess of the legal limit, a special reason may be found.

3 Ng-v-DPP 2007 TLR (February 2007 DRG Reports) The fact that D belched as he was taking a breath test on an Intoxilyser could amount to a special reason for not disqualifying if the breath reading is over the legal limit. (Comment: I read this case as establishing only the possibility that it could amount to a special reason. I say that it would be for D to prove (a) that his belch elevated his mouth alcohol, and (b) that that put his reading over the legal limit or made the reading unreliable).

4 IGNORANCE OF EFFECTS R -v- Scott 1969, 2 AER 450, 133 JPR 269 Not knowing that sleeping tablets could affect the alcohol level is not a special reason. Brewer -v- Metropolitan Police Commissioner 1969, 1 AER 513, 133 JPR 185 Not knowing that drinking alcohol after inhaling fumes from a particular chemical could affect the alcohol level is a special reason. R -v- Cambridge Magistrates Court, ex parte Wong 1991, 156 JPR 377, 1992 RTR 382 Taking cough linctus, not knowing that it contained a small amount of alcohol, which put him just over the level at which the police would not have prosecuted, is a special reason. DPP -v- White 1988 RTR 267 Where D gives a positive breath test after previously giving a negative breath test, it is not a special reason that he was not aware that it takes some time for alcohol to have an effect. EMERGENCY Taylor -v- Rajan 1974, 1 AER 1087, 138 JPR 328 If an emergency arises, so that D has to drive, that may be a special reason. But, the Court will have to be satisfied D could not have dealt with the emergency in some other way and D must not have committed other traffic offences. DPP -v- Bristow 1996, 161 JPR 35, 1998 RTR 100 In deciding whether an emergency amounted to a special reason, the court will ask: What would a sober, reasonable and responsible friend of D have advised if he had been present but couldn t drive himself? Would he have advised D to drive or not to drive?. Only if there is a real possibility that the friend would have advised D to drive will there be a special reason. DPP -v- Doyle 1993 RTR 369 D drank, knowing that he would probably be driving. Even though he had a genuine fear for his safety when he did drive, no special reason existed because he had intended to drive anyway. DPP -v- Whittle 1996 RTR 154 D s wife was the nominated driver but felt ill. D drove them home. No special reason they could have taken a taxi. DPP -v- Goddard 1998 RTR 463 Driving to escape assault is a special reason, but continuing to drive after the emergency is over loses the special reason.

5 SHORT DISTANCE DRIVEN James -v- Hall 1972, 2 AER 59, 136 JPR 385 D drove his car off the road onto his drive. Special reason found because very short distance driven. Coombs -v- Kehoe 1972, 2 AER 55, 136 JPR 387 James-v-Hall is a special case. Special reason did not exist where D drove car 200 yards to park it. Chatters -v- Burke 1986, 3 AER 186, 1986 RTR 396 Short distance alone is not the issue; the court must take into account all the circumstances, including how it was driven, whether it was necessary to drive at all, whether anyone was likely to have been put at risk etc. DPP -v- Rose 1992, 156 JPR 733 D drove two feet, but did not need to, so no special reason applied. DPP -v- Humphries 2000 RTR 52 If D drove only a very short distance, but would have driven further had he not been stopped, no special reason applies. De Munthe -v- Stewart 1982 RTR 27 D moved his car when a PC asked him to. The PC then suspected alcohol. No special reason, because the PC had seen him drive before. STOPPING DRIVING Duck -v- Peacock 1949, 1 AER 318, 113 JPR 135 Stopping the vehicle when D realised he was affected by drink was not a special reason. Jowett-Shooter -v- Franklin 1949, 2 AER 730, 113 JPR 525 D who realised when he reached his car that he shouldn t drive, and got in only to sleep, had a special reason. FAILING TO PROVIDE A SPECIMEN Daniels -v- DPP 1991, 156 JPR 543 The fact that there is no reasonable excuse for failing to provide a specimen of breath does not necessarily mean D cannot plead a special reason. Bobin -v- DPP 1999 RTR 375 Where a PC gave D incorrect information which affected D s decision not to provide a specimen for analysis, that amounted to a special reason.

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7 MISCELLANEOUS Myles-v-DPP AER 902 (September 2004 DRG Reports) The cases of DPP-v-Billington AER 435, Kirkup-v-DPP 2004 CLR 230 and Kennedy-v-DPP 2003 CLR 120 are clear authority for the proposition that a police officer may proceed to require breath or other specimens in the course of an investigation into whether D has committed a drink/driving offence, without having to wait until D has been given legal advice by a solicitor (unless that solicitor happens to be immediately available and it will not delay the procedures by more than a couple of minutes). Commonwealth authorities on the point do not alter that. Special reasons for not disqualifying must relate to the circumstances of the offence, not the offender. Delay in preparing a Case Stated cannot, therefore, amount to a special reason, as it has nothing to do with the offence. Where delay amounts to a breach of Article 6.1 (right to a fair and public hearing within a reasonable time), the court has no jurisdiction to reduce or not impose the minimum period of disqualification required by the RTA Whittall -v- Kirby 1946 The fact that disqualification will cause financial hardship; or that D is a person of good character; or has driven for many years without offending, cannot be a special reason. Williamson -v- Wilson 1947 The fact that disqualification would have harsh effects on D is not a special reason. Holroyd -v- Berry 1973 The fact that D is a doctor, who would not be able to do his rounds, is not a special reason. Griffiths -v- DPP 2002 The fact that D had not intended to drive so far, and would have been under the legal limit if he had only driven as far as he had intended, is not a special reason. Delaroy-Hall -v- Tadman 1969, 1 AER 25, 133 JPR 127 The fact that D was only just over the limit is not a special reason. Taylor -v- Austin 1969, 1 AER 544, 133 JPR 182 The fact that D s driving was not affected, and the accident was the other driver s fault, is not a special reason. DPP -v- Enston 1996 Where D s passenger forced D to drive by saying she would allege he had raped her if he did not, a special reason existed. DPP -v- O Meara 1989 The fact that D was only over the limit because of alcohol he had drunk the night before, and that he believed he would by now be under the limit, is not a special reason. Lodwick -v- Brow 1984 RTR 394

8 The fact that D s part of a specimen for a laboratory test has been lost is not a special reason. BURDEN AND STANDARD OF PROOF Jones -v- English 1951, 2 AER 853 It is for D to prove the facts. He must prove that it is more probable than not that those facts existed. Sworn evidence should be given. Weatherson -v- Connop 1975 CLR 239 It is for D to prove that it is more probable than not that the (unknown) added alcohol was the reason he was over the legal limit. Pugsley -v- Hunter 1973, 2 AER 10, 137 JPR 409 It is desirable for the defence to notify the prosecution in advance if it intends calling evidence to show a special reason. Smith -v- DPP 1990 RTR 17 Although it will usually be necessary for medical evidence to be called to show that the added alcohol took D over the legal limit, that will not be necessary if the case is such that it is obvious that that is why he was over the limit. Smith -v- Geraghty 1986 RTR 222 If a laced drinks special reason is pleaded, the prosecutor may put in evidence to show that at the time of the offence, D s blood/alcohol level was higher than when he was tested at the police-station, provided that can be done by straightforward and relatively simple evidence. David R. Goodman Barrister Justices Clerk and Director of Legal Services, HMCS, Staffordshire , 1 st update (Note: D = defendant). (Note: Chapman-v-O Hagan AER 690, 113 JPR 518 held that an injured motorist who took drugs, not knowing that that would affect his alcohol level, had a special reason. I am not sure that would be decided in the same way now). PAGE

9 PAGE 6 Drink/Driving: Special Reasons: Cases