Drinking, driving and the well-meaning friend

Have you ever received a drink from a friend with, well, just a little more in it than you expected?

Well-meaning friends often put a tot of whisky in tea, or vodka in orange juice, to help “cheer you up”. Unfortunately, if this leads you to drive with more than the permitted amount of alcohol in your body, it may lead to a charge of driving with excess alcohol and subsequent disqualification from driving - not a very cheerful prospect at all.

It is incumbent on us all to make sure we drive responsibly - this means taking particular care about what we drink, if we are planning to drive afterwards. Most of us do so but, occasionally, people find themselves in excess of the prescribed limit, even though they think they have drunk little or no alcohol. These are people who may well have been subject to a well-meaning friend’s largesse.

If you are unlucky enough to find yourself in that position, and can’t understand how it can be, it may be worth while asking the people you have been with to confirm that they haven’t been helping your drinks along. If they have, you may have a defence to a charge of drinking and driving.

Strictly speaking, the ‘spiked drinks defence’ is not a defence at all, because driving with excess alcohol is what is known as a ‘strict liability offence’. But it is a special reason not to disqualify - the onus of proof lies with the defendant, and not with the prosecution.

To have any chance of success, the defendant must show:

1. That, but for the additional alcohol unwittingly consumed by him, he would not have been over the limit.

2. That he did not know that he was consuming additional alcohol.

3. That he did not realise, or should not have realised, that he was in excess of the prescribed limit.

To prove the first, a report by an expert will be required, confirming that the alcohol reading would have been below the legal limit, but for the additional alcohol unwittingly consumed.

The second will, crucially, require evidence both from the person charged with the offence and from the person who put the additional alcohol in his drink. Without such a witness, the defendant will have no way of proving that his drinks were ‘spiked’.

The Court will not find special reasons not to disqualify where a person has clearly drunk so much that he should have realised he was over the limit. This is so, regardless of what he planned to drink and whether he consumed more alcohol than he intended.

Mere carelessness in picking up another’s drink will not be sufficient, but if you really have been the victim of spiking action, whether at the hands of a well-meaning friend or otherwise, then you may have a challenge if you find yourself pulled over at the side of the road and are invited to blow into the dreaded machine.