In this article barrister Thomas Wheeler provides an in-depth analysis of a recent Driving Offence matter he represented a client in involving the “hip flask defence.”
The client was charged with the following offences:
- Drink Drive (63micrograms of alcohol in 100ml of breath)
- Careless Driving
- No insurance
Background of the Case
The client was making her way from her home to a music festival, driving herself and her friend, who was sat in the passenger seat. The distance between her home and the festival was significant and would mean being on the road for over 3 hours. It so happens that, on this occasion, that journey was lengthened by traffic.
During the journey, her friend was drinking vodka and coke from a plastic cup. The client made a stop and purchased a single coffee for herself in order to not only break up the long journey but to help keep her awake.
Nearing the end of her journey, the client indicated to turn right onto a road in an area which was within a town. It was neither very busy or built up but there were a number of buildings, shops and a church.
As the client went to make the turn, her vehicle’s steering went light and there was no control over the vehicle. Though attempts were made to correct her trajectory, the steering became light and a collision was inevitable. The collision which occurred wrote of the car as the front passenger wheel was torn off when hitting the kerb. The vehicle spun slightly and ended up pointing the opposite way she had come.
The impact dazed the occupants of the vehicle. No one was injured and there was no damage to any other person or property.
Both the client and her friend exited the vehicle. At this point, the friend offered her some alcohol to calm her nerves. Naively, the client took the plastic cup and drank the contents. The friend then left the scene when the fire service arrived as otherwise, he would be late for the festival (the fire service confirmed his existence).
Once the police arrived the vehicle was checked over. There was found a near empty bottle of vodka, a cup with the smell of vodka on the driver’s seat and a Starbuck’s clear plastic coffee cup.
After an hour after consuming the alcohol, the police officer spoke to the client and she made it clear that she had had a volume of vodka after the collision. She co-operated fully with the police officer and was requested to provide a roadside breath sample. This was provided and she was found over the limit and arrested on suspicion of drink driving.
The client was also charged with careless driving as there was a civilian witness who said she looked as though she lost control of the vehicle.
She was taken, quite properly, through the police Intoxilyser procedure and she was found to have an alcohol/breath content of 63 micrograms. The legal limit is 35 micrograms. She was therefore charged with drink driving and careless driving. Further, a police check determined she had no insurance and was also charge with this offence.
The client was interviewed, and she gave the exact explanation as she did at the roadside in the presence of the police officer. However, from the police perspective, the client had been driving and was found over the limit.
Her version of events was maintained throughout and she did not deviate from it at any point.
As such, the client had a full defence to the charge of drink driving, namely one of “hip flask”, as she drank post-driving and was not drunk whilst driving. Furthermore, the defence to the careless driving was that there was a vehicle defect and it was not her driving that fell below the standard of a reasonably competent driver.
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What is the ‘hip flask’ defence?
The effect of S.5(1) of the Road Traffic Act 1988 is to create an offence where a person drives or attempts to drive a motor vehicle, or where a person is in charge of a motor vehicle, after they have consumed so much alcohol that they exceed the prescribed limit for alcohol in their breath, blood or urine. There is therefore a defence which may be run that the Defendant consumed alcohol after having driven their vehicle, but before being stopped or breathalysed by police.
This is known as the ‘hip flask’ defence, as in the Defendant may have driven their car – soberly or having only consumed a small amount of alcohol – and perhaps experienced an accident, and decided to consumed alcohol from a ‘hip flask’ afterwards to calm their nerves, only to have the Police arrive on scene and take a specimen from them which shows they had consumed alcohol in excess of the permitted amount, and be accused of having been over the limit at the time they were driving.
Section 15(2) of the Road Traffic Offenders Act 1988 (“the RTO Act”) creates a presumption that the amount of alcohol measured in a suspect’s sample ‘was not less than’ the amount of alcohol in their system at the time of driving. This wording prevents a Defendant challenging the analysis as being too high on the ground that because they had only recently consumed alcohol, the alcohol level in their breath, blood, or urine had risen since the time they were stopped by the police.
However, S.15.(3) of the RTO Act allows a Defendant to rebut this presumption with evidence to the effect that the amount of alcohol measured in their sample could only have been achieved by drinking the volume of alcohol claimed to have been consumed after they drove:-
The assumption… shall not be made if the accused proves—
(a) that he consumed alcohol before he provided the specimen or had it taken from him and—
(i) in relation to an offence under section 3A, after the time of the alleged offence, and
(ii) otherwise, after he had ceased to drive, attempt to drive or be in charge of a vehicle on a road or other public place, and
(b) that had he not done so the proportion of alcohol in his breath, blood or urine would not have exceeded the prescribed limit and, if it is alleged that he was unfit to drive through drink, would not have been such as to impair his ability to drive properly.
At the initial hearing, where the client needed to plead guilty or not guilty, the client fully indicated that she wished to plead not guilty to all offences. I was representing at that hearing and was provided with an insurance document which evidenced that she was insured. The confusion had arisen due to the vehicle being a lease vehicle and so on a police check, it would not show as she was insured.
The Prosecution, quite rightly, withdrew the no insurance charge. The client pleaded not guilty to the remaining offences and the issues were clearly set out within the case management form.
The Prosecution failed on numerous occasions to provide the required evidence and subsequently, the case was listed for mention to force the Prosecution to provide, amongst other things, the body cam footage of the arresting police officer. This was subsequently provided.
Upon viewing the body cam footage, it was clear there were inconsistencies and embellishments within the police officer’s statement and the client had given a full and frank account to the officer at the roadside which mirrored her interview.
First Trial Date
The trial date arrived, and the client was ready to give evidence. Unfortunately, as the Court had over listed trials on this date, we were adjourned. However, although the officer was in attendance, the civilian witness was not. Had the trial gone ahead at this point, there would have been an inability by the Prosecution to prove the careless drive aspect.
Second Trial Date
The second trial date arrived, and I spoke to the Prosecution. I was informed that there was a higher priority trial which was to be dealt with first. At this point, neither police officer nor the civilian witness had attended court.
Nearing 1pm, I was informed that the officer was on sick leave and the civilian witness had not attended. A phone call to the civilian witness proved that he would not be attending as he was at work.
Given this was the second trial date, the Prosecution could not adjourn, and so they had to offer no evidence as they could not prove the case without witnesses. As such, the client was free to leave.
Despite this turn of events, the defence raised by the client had a significant chance of success. The Prosecution, knowing this was what was being raised, had failed to rebut the defence in anyway by expert evidence. Furthermore, the client had been consistent with her version of events and the officer had embellished parts of his evidence when compared with the body cam footage.
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How do I use the ‘Hip flask’ Defence?
The standard to be met by the Defence is on the balance of probabilities. Depending on the sample evidence and surrounding factors, in rare circumstances it may be apparent on the face of it that the sample level could only have been achieved by the alleged amount of post-driving drinking. If this is ‘obvious to a layman’, this can be a factual defence run without expert evidence (Lord Widgery CJ in Pugsley v Hunter  1 WLR 578).
In most cases though, evidence from a forensic toxicologist is necessary and ought to be sought despite the costs associated with the same. In DPP vs Singh 1988 RTR 209, an acquittal was set aside on the grounds that the magistrates could not without expert evidence have reliably and confidently concluded that the Defendant had established that the alcohol consumed after driving was sufficient to account for his exceeding the prescribed limit. As a result, the Defendant was held to have failed to discharge the burden of proof.
As confirmed in DPP v Dukolli  EWHC 3097 (Admin), in almost all situations in which a hip flask defence is raised, expert evidence is required. In this case, the Defendant said that he had had a shot of vodka and a bottle of lager before driving, but that after starting to drive he had pulled over to sleep. When the Police came upon him, he averred that he had not drunk any alcohol other than what he consumed before driving, despite having an open bottle of vodka stored on the rear seat. Then, at trial, the Defendant gave evidence which he failed to provide on the night, namely that he had had another mouthful of vodka in the lay-by at that moment that he saw the Police officer approaching. The Defendant did not call any expert evidence and relied on his ipse dixit (his statement without proof).
In his judgment, Mr Justice Openshaw commented at [1.12]:
“In this case, there was a real issue whether the defendant was a credible witness, not least because what he said in court contradicted what he said to the police officer at the time of his arrest, at the time of giving the breath test and indeed in interview. In addition, aspects of his account, such as swallowing a mouthful of vodka as the policeman approached, seemed inherently unlikely. This, in my judgment, is precisely the kind of case where expert evidence is important. Expert evidence would, or certainly may have, enabled the justices to test whether the readings given were consistent with the defendant’s account, and may very well have led to the conclusion that they were not. Furthermore, even if they accepted his story of having a mouthful of vodka, it is not at all obvious to me that a lay person would have found that that mouthful explained or even could have explained the excess.”
The technical analysis required to establish this is sometimes referred to as a ‘back calculation’, to show that the suspect’s alcohol level would have been within the permitted range at the time of driving. Any toxicology report or attempt at back calculation must take into account different factors which vary the effects of alcohol on the individual suspect. For example, a suspect who drinks on an empty stomach will be more intoxicated drinking the same amount of alcohol as a suspect who drank on a fuller stomach.
The report should also address other factors which vary how alcohol consumption affects an individual: the time alcohol was consumed; the weight and size of the suspect; how quickly the alcohol was drank; the type of alcohol, a suspect’s emotional state at the time of drinking; any medication the suspect was on at the time.
What should I expect if I run this defence?
When running this defence, it will naturally be much harder to argue that the Defendant was not in excess of the prescribed limit at the time of driving where the Defendant can be shown to have drank some alcohol before driving, driven some distance, and then continued drinking before a specimen was taken. A lengthier period of consumption is more difficult to back calculate. This defence is generally better run in circumstances where the period of consumption is discrete.
A Defendant running this defence should be prepared that the Prosecution might raise a challenge on the basis that the Defendant is being dishonest in some way about their consumption and the surrounding factors. It is recommended then that a Defendant’s account can be corroborated with evidence from other sources, such as receipts, bank statements, CCTV, witness evidence.
The effect of this defence is that the Prosecution is put to proof that the Defendant did not consume alcohol after driving and before the specimen was taken. The Prosecution might do this by challenging the Defendant’s account about how and where they consumed the alcohol, or call witnesses from the scene to the effect that they did not see the Defendant consume any alcohol after exiting their car and before they gave a specimen, if this is available.
The effect of the statutory presumption at S.15(2) above also means that the Prosecution may also call evidence to the effect that while the specimen reading appears low, the Defendant’s alcohol level was in fact higher at the time they were driving. This is more likely to happen in a situation where the specimen was taken a significant period of time after the driving. If this is the Prosecution’s position, it is of course their burden to satisfy the Court of this beyond reasonable doubt, a higher standard than what the Defendant faces in running a hip flask defence.
Barrister & Kang & Co Solicitors Co-Director
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