My partner was caught for drink driving and was unable to give a breathalyzer test due to the fact that he was hyperventilating at the time. He suffers from asthma as well as Hyperventilation Syndrome. His lawyer and the courts do not know too much about this condition. He did not refuse to give the test he just could not explain why he couldnt give it due to his overbreathing and state at the time. What must he do to gather relevant info together to educate the lawyer and the judge that he was not trying to defy the law at the time. He hadn't gone over the drink driving limit but now they are arguing the point saying that he REFUSED to give the test which isnt true. he is very anxious over this as he respects the law and is a good driver and would never put anybody's life at risk. I really would appreciate some advice as he has tried to obtain medical reports confirming his condition which he has got but the court are still not satisfied as they are uneducated regarding HVS
Answers:
OK forget about all the saints who give answers having never stepped out of line before.
I assume that you are in the UK if not this will be of no use to you at all.
Technically in the eyes of the law, not being able to provide a sample of breath, for whatever reason os classed as a refusal, simply and only because there is not a provision for inability whatever the cause. I assume that given the logged "refusal" your partner was arrested and taken to a police station.
There he should have been given a further chance to provide a sample of breath into a different type of machine, if not he should have been seen by a police doctor and if the doctor says that he was unable to provide a breath sample he should have been given either a urine of blood test, however if the police doctor said that he would have been able to provide a breath sample and then didn't or still couldn't he should have still been offered a blood/urine test.
The fact that a judge is involved I guess that your partner was charged with "failing to provide a breath sample" under Section 7 of the Road Traffic Act 1988. To stand a chance you are gonig to need to get some strong medical statements on both your partners pre-existing medical conditions and probably an expert to give evidence on HVS at court, this will not be cheap.
If it is of any help the exact wording of S7 "Failing to provide an evidential breath specimen"
"A person who, without reasonable excuse, fails to provide a specimen when required to do so is guilty of an offence"
It goes on to cover excuses and states that the evidence to support "Reasonable excuse" normally has to be medical, being under stress IS NOT reasonable excuse. Shortness of breath or panic attacks will not always amount to reasonable excuse.
Have a search for a case R v Falzarano, this is a stated case where the defendant used diagnosed panic attacks as a reasonable excuse. To win the case the defendant provided evidence that she had been diagnosed (Before the charge) with panic attacks %26 she was receiving treatment for panic attacks. This persons own doctor even said that she "SHOULD" have been able to provide a sample. She won her case.
In the eyes of the law he did refuse. He needs to tell his Lawyer about his condition. And at the time of the breath test he could not breath, he was having an attack.
First of all
he IS a BAD driver and WOULD put others lives at risk, as he has proven.
He needs to discuss these reports with his lawyer, and you could also see a specialist about his condition for a more 'credible' report. If your lawyer is not satisfied to argue about it or is not willing to find ways to do so, find another one!
Remember that having HVS may explain his reason as to why he could not take the breathaliser test, but it cannot in ANYWAY justify his drink or even reckless driving.
should have had blood test
hi there ,this is going to be quite hard for you to prove now as the law is really coming down hard on drink driving and to be honest im glad to many lifes have been ruined by these actions .ok go onto google and get into medical and down load as much info as possible ..im really suprized if youre lawyer hasnt already done this ,does this lawyer now anything about medical conditions ,probably not and as for the ploice well they are going to want a result on this one ,im sorry im not trying to upset you ,why does youre partner not go to his doctor and get confirmation from his doctor in writing regarding all youre partners medical problems and explain to the doctor what it is for ...this will cost you as they now charge in the uk for this type of letter ,all judges look at letters from doctors and they do take them into consideration and can often stop ant further court action ,and i hope this will sort the problen out for you ..and learn from it .NEVER EVER DRINK AND DRIVE !!! IT'SNOT WORTH IT and you could end up killing some innocent person ...good luck and take care xx
I would have thought that was your lawyers job, that's what you pay him for! Tell him to get his fingure out and get the info. he needs to defend your partner!
Good luck to both of you.
to future fbi guy, you need to read the question properly especialy if you realy do wish to join the fbi! to quote 'He hadn't gone over the drink driving limit but now they are arguing the point saying that he REFUSED to give the test ..'
if they had reson to belive he was over the limit and could not get a breath test from him ,why did they not insist on a blood test unless they knew it would be a waste of time ...police insist that if a breth test is not given then you will be taken to the station where a blood test will taken from you..i would argue this point that at no time did you refuse to give a blood test
First of all - 1 Drink is often to much to get behind the wheel of a car. as it has more time to get through the blood stream (and combined with any medications it makes the effect worse)
Due to the fact that your partner was caught for drink driving and could not give a breath test due to health reasons - there are other tests available that would require him to go to the police station or to a local a %26 e for a test. Such as a blood test.
Some police officers have also been trained to give roadside sobriety tests like they have in the states - ie. walking in a straight line, touching tip of finger to tip of nose.
What most people do not realise is that when drinking you may be "below" the limit when you start out however it can go higher later on due to the fact that it has the time to get into the blood stream and this includes even after one drink.
You said that he could not give a breath test due to his medical condition it can be considered the same as refusing to do the test and at the time the officer has to use his own judgement and either arrest him or let him go - I take it in this case he was arrested and charged.
for information about evidence of his condition - you will need to provide medical reports and perhaps the testimony of his doctor or a specialist regarding this condition.
At the time he was pulled over the officer could have of course called in an ambulance and they could have calmed him enough to be able to do the test.
The point being in this case is that your partner had been drinking (even if he was below the limit) and should not have been driving.
Like I have said above even one drink can cause some to go over the limit even if they dont think they are - and with someone who is on medication for asthma and HPV this can also cause someone who has had just one drink to be over the limit and unfit to drive.
So lesson learned - if you drink (even just one) dont drive, call a cab or get a bus, call someone to get you or walk.
you say that he is a good driver and that he respects the law and would never put anyone's life at risk however having a drink no matter how much and getting behind the wheel of a car is putting not only his life in danger but also risking the lives of other drivers and pedestrians.
No I'm not having a go but perhaps that is the lesson that the courts and lawyers and the judge are trying to make.
IT ONLY TAKES JUST ONE
Subscribe to:
Post Comments (Atom)
No comments:
Post a Comment