23rd February 2017


I was a driver involved in a road traffic accident. Before the Police arrived and to help calm my nerves I drank alcohol after the accident. The Police have now arrested me for and charged me with an offence of driving whilst under the influence of alcohol. Do I have a defence?


The Road Traffic Act 1998 makes it a criminal offence to be in charge of a motor vehicle whilst under the influence of alcohol. Where the police have reason to believe that someone has committed such an offence a specimen of breath, blood or urine is taken to establish whether the driver has been driving whilst over the prescribed limit. Section 15 of the Road Traffic Offenders Act 1988 confirms that it is presumed that the reading the Police obtain from the specimen test confirms the amount of alcohol the driver had in their system at the time they were driving the vehicle.

However, what about if the driver only drank alcohol after driving? There is in certain circumstances a defence which is often more popularly referred to as the ‘Hip Flask Defence’. In cases where a person consumed alcohol after driving or being in charge of the vehicle but before the specimen was taken, section 15 of the Road Traffic Offenders Act 1988 provides that it is a defence to show that the post-drive drinking caused the specimen to have a reading which was above the legal limit.

It therefore needs to be shown by the defence that on the balance of probabilities the driver had consumed alcohol after driving the vehicle and this is why the specimen reading is higher than the legal alcohol limit. Strong evidence would be needed to support this defence. It is therefore likely to be necessary to instruct an expert in toxicology to consider the facts of the case, carry out any necessary testing and produce a report of their findings. The toxicologist will likely consider what was consumed, how much was drunk, how long it was after driving that the driver drank alcohol and for how long the drinking lasted. This will assist the expert in determining how quickly the body had processed the alcohol and will help to determine the impact the drinking had on the specimen test. The findings of the expert are likely to be of great significance to the outcome of the case and therefore it is very important that anyone involved in such circumstances speak to a solicitor as soon as possible.

Ben Hoare Bell has several specialist Criminal Solicitors who may be able to help you in situations such as this. To speak to a solicitor please phone us or email advice@benhoarebell.co.uk.

Please note that this advice was correct at the time of writing. However there may have been changes in the law or procedure since that date. If you are in doubt you should obtain up to date legal advice.