Expert Witness (13 page)

This is an extremely popular defence and there are many, many examples of its use. For magistrates hearing these cases on a regular basis, it got to be a bit like the dog-ate-my-homework story — new and apparently convincing to the student, old hat and totally unbelievable to the teacher. However, as with all these things, some cases do stand out and there was one in particular I remember. Not only did I feel sorry for the defendant, and I never usually have any feelings one way or the other — that's my job — but I actually believed what he was saying, not that I said that to anyone: that's
not
my job.

In this case, I had to attend court to give evidence, which meant I heard the trial proceedings, including the defendant giving evidence. It transpired that the defendant's car was found parked across the corner of a road junction, partly on the grass, partly on the road. His wife had skipped off to shack up with his best mate and had taken the children with her, without telling the defendant where she was going or that she was taking the children. The defendant drove round to the new fella's house in case that's where they were. It was Saturday and there was nowhere to park down this small residential road because everyone was at home, so he just ditched the car where he thought it would be OK and stormed off to the house to confront his wife (or, probably more accurately, his ex-wife). When he got there, the wife refused to let him see the children and threatened to call the police and have him removed if he didn't leave. Not wanting to upset the children
by making a big show, the defendant left, feeling rattled and angry. Rather than going home, he walked up the road to the local pub where he drank seven pints of strong beer. He said he intended to get a taxi home. The police walked into the pub while Mr Defendant was on his seventh pint and asked if anyone owned the illegally parked car on the corner. The defendant confirmed it was his, was arrested and then charged with drink driving. What would have helped his case was the landlord of the pub giving evidence to say he had served the defendant and that he hadn't been drunk when he'd arrived in the pub. Unfortunately, the landlord was a friend of the wife's new bloke, so no support there.

I don't normally wait in court to hear the outcome of a case because, professionally speaking, the outcome is of no significance — I'm there for the benefit of the court and when they've finished with me, they tell me so and I can leave, so I do. On this occasion, I had to have words with the barrister before I left court because there was some dispute between the bean counters at the court and my employer about who had said I should attend and therefore who would be paying the bill for my attendance — if you leave the court before getting that sort of thing sorted out then the English courts will never pay and neither will your instructing solicitor.

The upshot was that it all turned to custard for the defendant, he was found guilty and lost his driving licence. The worst part was that he couldn't see his children — he worked odd hours and the bus service to where his children were living was non-existent; he had to wait until he'd served his ban before he could see them, which was a mandatory 12 months (down to nine months if he took a court-approved Drink Driving
Awareness course). He was in tears when the magistrates sentenced him. It was terrible. I was so disheartened when I left — and, as far as I know, the court never did pay for my attendance. The company never did any more cases heard in that court, which was good, because it was a shocker of a concrete grey box with orange, hard-seated plastic chairs and the worst tea machine south of London.

Spiked/laced drinks

The other defence to drink driving is the spiked drinks defence. These are the cases where people say, for example, that they only drank two pints of beer before driving home after an evening in the pub and were stopped by the police at a checkpoint only to find they were over the legal limit. Their argument is that someone at the pub must have added two double measures of vodka to each of their pints of beer without their knowledge. The problem with these cases was that usually the additional alcohol was apparently added by someone at the bar, usually a stranger, when the drinks were ordered. The thing is that pint glasses usually require filling to the top to be a pint, so where does the extra volume of liquid fit? Does the spiker slurp out a great mouthful of beer first before adding the vodka? If so, why doesn't the drink owner notice while they're paying for their drinks?

There are variations on the theme of course, which were particularly prevalent after Christmas — the brandy-in-the-Christmas-pudding or sherry-in-the-trifle. Sherry in the trifle deserves some consideration because trifles aren't baked (not usually, but anything's possible in my experience), although there was one case where allegedly an entire bottle (700 ml) of
cherry brandy was added to a trifle and the defendant ate half of the entire trifle. Anyone who has made a trifle will know that if too much liquid is added, it turns into a multi-coloured stream of sprinkles, cream and jelly. In that case, I think the magistrates ‘formed a view' that it wasn't really very plausible.

Brandy on the Christmas pudding or wine in the casserole is never a flyer because these food items are heated. Alcohol evaporates very easily, particularly when heated. In fact, the whole point of pouring brandy over the Christmas pudding is to set fire to it, thus burning off the alcohol. Still, I guess people think it's worth a go.

In addition to the defences allowed by the law there are people who'll give anything a go, just in case it might get them off a drink-drive charge. Here are some of my favourites from over the years from various countries.

I had a case once where a biker had been involved with some road traffic incident or other and he had been taken back to a police station ‘for the purposes of providing an evidential breath sample, blood sample or both'. The breath-testing device wasn't working so he was required, by law, to provide a blood sample. He said he couldn't give a sample of blood because he had a profound fear of needles. In such circumstances, the police could have chosen to ask him to provide a urine sample instead but they didn't exercise this option because they'd taken a look at this chap, seen he was plastered in tattoos and decided there was no way he was needle phobic. Because the defendant refused to give a blood sample and the police refused to offer a urine sample, the defendant was charged with Failing to Provide a Sample for Analysis.

I received a phone call from the solicitor asking what I could do about it. I advised that although as a forensic scientist I couldn't do anything, I was aware that having a tattoo needle hammering into the skin isn't the same as having a needle inserted into a vein for the collection of a blood sample. With needle phobia it's not just the action of the needle in the skin, it's the psychological aspect as well, which is often the thing with which people seem to struggle. Phobias are often irrational.

I suggested the solicitor seek a professional medical opinion, which he did. The case came to trial and the defendant was successful because the medic distinguished between needles involved in having a tattoo and the manner in which a blood sample is taken from a vein. Maybe the defendant had been drink driving, but he wasn't guilty of Failing to Provide because he had a real medical condition that precluded giving a blood sample. If only the police had asked him to pee in a pot.

Here's an interesting one, an English case. Solicitor calls. Their client is a Jehovah's Witness who failed a breath-screening test, which means alcohol was detected in a breath sample he blew into a roadside-screening device that is extremely reliable in detecting alcohol — if the test showed a fail then the driver has consumed so much alcohol he's over the legal limit to drive. The police station breath-testing device wasn't working so the driver was required to provide a blood sample. He refused on religious grounds. The driver was required to provide a urine sample. He refused on religious grounds. Can I help? My response: why did the defendant fail a breath-screening test when he wasn't supposed to have been
drinking alcohol to excess anyway, as drunkenness is forbidden as part of the same set of religious beliefs he was quoting? Seems to me he was being a mite selective in applying the tenets of his faith. Human beings eh? We'll try anything!

A common misconception is that a woman's menstrual cycle somehow affects her blood alcohol level, and there has been specific research to address exactly this issue. It's also a well-known fact that women's moods can change, sometimes rapidly, at various parts of their cycle and I remember some research shown as part of a TV programme that assessed whether diet made any difference. Apparently, it does — eating dairy products at certain stages through the month can reduce the effects of mood swings, although they won't necessarily get rid of them altogether. But can the menstrual cycle, on its own, adversely affect a woman's blood alcohol level? In a word, no. It just affects how you feel, not the actual numerical blood alcohol concentration.

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.