Expert Witness (12 page)

The stage before ‘coma' and ‘death' is ‘stupor' (blood alcohol range approximately 250 to 400) in which you are about to lose your motor functions and you are unable to stand or walk as a result of muscular in-coordination. You might pass out and/or suffer incontinence.

Once you've reached ‘coma' stage (blood alcohol levels in the region of 350 to 500), there's unconsciousness possibly associated with depressed or unresponsive reflexes, reduced blood circulation and reduced ability to breathe. Your temperature falls as you approach the health danger limit and death is now a distinct possibility. Eventually, your blood is so soaked with alcohol you are unable to control your muscles
and you can't breathe. You are dying but you probably don't know about it because you're unconscious. When your blood alcohol level clocks over 450, there's a good chance you're dead.

To accompany the suggestion of lowering the drink-driving level in New Zealand, there has been much comment in the media about the effects (or not) of a related reduction in drink-driving ‘accidents'. The road traffic police in England refer to them as ‘avoidable incidents', because they are; there's nothing accidental about them. Personally, I think that although a reduction in the drink-drive limit would not immediately and dramatically reduce the number of road traffic incidents in which alcohol is a factor, time would make its mark. Drink driving is socially acceptable in New Zealand, more so than in other countries. Kiwis drink hard and long. Peer pressure in my age group (currently late thirties/early forties) that reduced drink driving in England and Wales during the 1980s and 1990s does not exist to the same degree here.

People often seem to drink and drive in this country because there is the general perception that the driver can ‘calculate' what they can get away with drinking before they are over the limit. By the time they are over the limit, they are in the ‘euphoria' stage and, in my experience, mostly in the ‘excitement' stage. Personally, I wonder whether the current law is fair in allowing an individual, who is probably already impaired to drive, to make a sensible decision about whether or not they're impaired to drive. I realise that lowering the blood alcohol limit to 50 is the top end of the sub clinical stage but the effects of alcohol vary within and between individuals, regardless of the limit stipulated by the law.

In that regard, alcohol is a unique drug — no other drug has a level stipulated in law for driving precisely because the effects of drugs are unpredictable and are complicated by mixing of drugs (including alcohol), people's habituation and other factors. Regardless, I will carry on doing calculations based on the limit of 80 because that is what the law says. Alcohol is a major contributor to so many other crimes in this country — it's never going to go away.

As with every thing, though, these things are never straightforward and there are always exceptions to the rule. Alcoholics spring to mind. Most people think that alcoholics can take their beer better than the rest of us and in many instances that's true, but it doesn't make it a good thing. The bodies of alcoholics have often adapted to the continual supply of large amounts of alcohol and their livers can eliminate alcohol at a quicker-than-average rate. The person is also often used to the effects of alcohol so can function with blood alcohol levels so high the rest of us would be falling down flat or giggling like teenagers with a bottle of bubbly.

This kind of argument has often been used in drink-driving cases where the driver says that they are an alcoholic and metabolise alcohol faster than normal. The gist of the request from the lawyer in these cases is that any blood alcohol calculations I might make should not use the average rate of elimination but should use the fastest rates of elimination. This means the driver's blood alcohol level would fall to the legal limit sooner than an average member of the public because they get rid of the alcohol from their bodies much more quickly.

At this point I should mention that there are clinical/
medical descriptions that clarify the differences between social, heavy and dependent drinkers and alcoholics. I don't intend to go into those definitions because my job doesn't involve having to discern the difference, although I do take into account a person's drinking history. The other reason for not going into detailed descriptions is that such groupings are best used by the people who defined them; generally speaking, I work with people who use phrases like ‘heavy drinker' and ‘alcoholic' interchangeably. I also work with people who want to demonstrate extremes to suit their case (and I'm not necessarily talking about lawyers) and they will use medical terms to suit their needs. By avoiding such terms and just describing the circumstances that relate to a particular case, I avoid falling into traps regarding descriptions.

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:

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.