How can you defend a drink driving charge? Pleading not guilty to a drink driving allegation is fairly unusual. Most general criminal defence lawyers rarely, if ever advise clients to plead not guilty. I think this is because the drink driving laws are so complex that you need to be a specialist to find a solid defence.

A few weeks before Christmas I got a call from a client who had been charged with drink driving. His reading was just over the limit but he knew that he would be banned and wanted me to reduce the level of the ban. When we got to court I went through the papers with him. The police had offered him the option of giving urine which he accepted.

He had given 2 samples as required by law, however it became clear that in fact it was just one sample. The law requires the police to take 2 samples and throw the first away and use the second. The reason for this is because the first sample comes from the processed urine already in the bladder, therefore by definition it has a higher percentage of alcohol than in the rest of the body and is not an accurate sample.

In this case the police had given him 2 containers and asked him to fill them both, assuming that this constituted 2 samples. It doesn’t, it is just 1 sample split into 2. I advised him that he had a perfectly valid defence, it was not clear at all whether he was over the limit because the samples were not taken properly.

We went into court, I quoted the case of Prosser v Dickeson [1982] R.T.R. 96 which is a case very similar to ours, although the court and the prosecution were not aware of the case it became clear that the CPS would not be able to prove the case against my client and he kept his licence.