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The "Hip Flask" Defence -Post Incident Drinking

Added: (Tue Dec 23 2008)

Pressbox (Press Release) - Post Incident Drinking Defence

It is often referred to as "The hip flask defence" coming from the term used in a case where the accused claimed that after a crash he had taken a few drinks from his hip flask to calm his nerves. Sheriffs tend to take the view nowadays that anyone who has been involved in a road traffic accident will expect to be tested and would be extremely unwise to consume any more alcohol in these circumstances. It is therefore VERY difficult to establish such a defence.

Drink/drivers should be aware that there is a legal presumption taken from Road Traffic Offenders Act 1988 that the proportion of alcohol in a driver's breath, blood or urine at the time of the alleged offence was not less than in the specimen.

This means that you require to establish the defence if the you claim that you had been drinking after the incident but prior to giving a sample. Check section 15(3) - if the driver establishes the matters set out at section 15(3) on a balance of probabilities then the defence is made out and must be rebutted by the Crown case. This type of defence is common in practise but uncommon in success.

It is not impossible but will usually require the evidence of an independent forensic toxicologist who can provide a detailed report that will hopefully support the accused's explanation of the amount of alcohol consumed and when.

The defence must call scientific evidence on the point unless it is obvious to a layperson that the post offence consumption of alcohol explained the excess. Never assume that it would be obvious, you would generally always be wise to seek out a report and to forward a copy of same to the Crown well in advance of the trial to have it agreed wherever possible. Reports normally cost in the region of 250+Vat to prepare however if you require your expert to come to court to give evidence this can be very expensive. It will depend upon the time taken for the witness to be called and to give evidence.

If a driver provides a specimen a long time after the driving offence and this proves to be below the limit the forensic experts acting for the Crown may provide a report indicating that at time of offence the blood alcohol was over the limit and therefore the driver may still be prosecuted. This is not something that happens very often probably due to the evidential issues and difficulties n presenting the case in a fair manner.

Expert evidence on post incident drrinking

The expert will provide a report setting out his presumptions and the mathematical calculations used in coming to any conclusion.

To be successful you really need to provide the expert with as much accurate information as possible otherwise there will always be an element of guesswork about the process and this will work against you. Although the defence ONLY requires to be made out in the Balance of probabilities you will find that this is still a high standard. It is worth instructing a specialist law firm to assist with this whole process but however you proceed there will be a set amount of information that your expert requires. It can be worth calling the forensic department of your local University to see if they have an expert available and then ask them to fax you a list of they require. They sometimes have a form that you can use to provide the required information.

Basic Information Required

* Full detail of any food consumed from six hours before the
* offence.
* Weight, height, build, age and sex
* Known medical condition (Acid reflux, irritable bowel etc)
* Medication taken regularly, or within 6 hours prior to drinking;
* Type and quantity of alcohol consumed before the offence and, if possible, the times at which the units of alcohol were consumed. Brand names ok and provide the actual containers that the drink was consumed from eg Glass marked with the measure taken.
* the same information concerning any alcohol that you consumed after the offence but before you gave the specimen for the test.

Submitted by:Graham Walker
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