How Mental Health can help your drink driving case

Mental health, drink driving and drug driving

Mental health problems can be relevant to drink driving and drug driving cases, but having a diagnosis does not automatically give you a defence. Your mental health may matter if it affected your ability to understand the police procedure, the reliability of the evidence, whether you had a reasonable excuse for not providing a specimen, or the sentence you receive. If you've been charged with drink or drug driving - and think that you might suffer from a mental illness - we can help.

Some people use alcohol or drugs to cope with distress or trauma. Dependence can make it harder to stop. Alcohol and drugs can also affect judgement, memory, coordination and reaction times. This may help explain what happened, but it does not make drink or drug driving lawful.

Research from the Alcohol Health Alliance account describes people drinking to cope with poor mental health and continuing to drive while dependent on alcohol. NHS guidance on alcohol-use disorder also explains how alcohol dependence can affect mental and physical health.

ADHD and autism are neurodevelopmental conditions, rather than learning difficulties. Dyslexia is a learning difficulty. The guidance below may still be relevant if a condition affects your ability to understand the police procedure, communicate clearly or drive safely. DVLA rules differ depending on the condition and how it affects your driving.

The guidance below also applies to learning difficulties such as ADHD, Dyslexia and Autism Spectrum Disorder. 

We would estimate that around 60% of all those who contact M.A.J. Law in relation to an allegation of drink, drug driving or failing to provide a specimen will suffer from a mental illness. Depression and anxiety are the most common. This is our own enquiry estimate rather than a national figure.

 

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Drink driving, alcohol and mental health

Alcohol is a depressant. It can slow your thinking and affect judgement, memory, coordination and reaction times. These are all skills you need to drive safely. The NHS explains the health effects of harmful drinking and alcohol dependence.

Of course, alcohol can also affect your understanding and your ability to follow simple instructions. This could be important when defending a drink driving allegation. 

What happened at the police station matters. If a mental health condition made it harder for you to understand what was happening or explain yourself, the police should consider whether you are vulnerable under PACE Code C. In simple terms, this means deciding whether you need extra safeguards, such as an appropriate adult, to help you understand your rights and the procedure.

Medication and your breath results

Our clients will often tell us that there is no “magic wand” for treating anxiety or depression. Severe anxiety or depression can stop you visiting friends, going to work, using the phone, leaving the house and even cause suicidal thoughts. Different medications exist to treat anxiety and depression. You may have been prescribed medication by your doctor.

Some prescribed psychiatric medicines can make you drowsy, slow your reactions or affect concentration. That makes driving unsafe. The effect depends on the medicine, the dose, your condition and how you respond to it. If you get medical advice to not drive, follow that advice.

For drug driving, some controlled medicines have legal blood limits. Diazepam and lorazepam are examples. If you were taking a prescribed medicine as directed, the law includes a medical defence to the offence of being over the specified drug limit.

Put simply, you may have a defence if the medicine was supplied legally and you took it as instructed. This does not allow you to drive if the medicine has made you unfit to drive. See the GOV.UK drug-driving law and the guidance for healthcare professionals.

Medication can still be relevant to a case, but having a prescription does not automatically make a positive test invalid. If we think medication may have affected the evidence, we need proper medical or expert evidence to support that argument.

The most commonly prescribed drugs for anxiety are;

• Diazepam
• Valium
• Alprazolam (Xanax)
• Lorazepam

The most commonly prescribed drugs for depression are;

• Prozac
• Sarafem
• Sertraline
• Effexior

Different drugs can affect alcohol metabolism in different ways. Some drugs may slow down the speed at which alcohol is broken-down, others may increase it. We are often asked whether certain medications can cause ‘false positives’ on breath test machines or falsely increase the breath readings provided. Studies have shown that medication can affect your breath alcohol concentration, not just by increasing your breath test results, but also by making you appear more intoxicated than you perhaps are.

Breath testing devices currently in use were first designed and developed in the 90's. Since then, medical research has advanced and new drugs have been developed to treat anxiety and depression. This also means that these new drugs were never tested on older machines. A concern for any person suspected of drink driving.

M.A.J. Law work closely with independent toxicologists, doctors and forensic experts who specialise in considering the affects of medication on alcohol absorption and elimination rates. Remember that it is not necessary to show that medication did affect the breath reading, we only have to show that medication could have affected the breath reading. Where doubt exists as to the reliability of the result provided by the breath testing device, the court cannot convict you.

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Drug driving and your mental health 

Drugs such as stimulants may have some performance enhancing effects, for example by improving reaction times and alertness. Some drugs have adverse effects such as reducing critical judgement, increasing impulsiveness or increasing error rates (Report from the Expert Panel on Drug Driving K. WOLFF).

M.A.J Law represents motorists suspected of drug driving on a daily basis. We specialise in finding defences that can be used to win your case. As the law changes overtime and new offences are created, new defences will arise. Drug driving became an offence on 2nd March 2015. Since then, M.A.J Law has developed a number of unique defence strategies to help our clients win cases. Many of these defences are not known, or even understood, by many other defence practices. See below.

Drug driving, mental health and medication can overlap.

You may use alcohol or drugs to cope with poor mental health. A prescribed medicine may affect your ability to drive. Or the medicine itself may be one of the controlled drugs covered by legal limits. The exact charge, blood result, prescription, dose and whether you took the medicine as directed can all matter.

 

Mental Health Defences in Drink and Drug Driving Cases

A mental health condition can be relevant to your defence, but a diagnosis on its own isn't enough. One of the most effective defences that we use relates to your ability to understand the procedure when taking the sample and the requirement to call an appropriate adult.

By law, an officer requiring you to provide a breath, blood or urine specimen should fill out a 20 page document known as an MGDD document. The purpose of the MGDD document is to ensure that you're given the correct legal information before you provide the sample.

If you do not remember this document being completed, we would review the procedure carefully to see whether anything went wrong.

Even if the police have correctly completed the MGDD document, you should not be convicted if you did not have the capacity to properly understand your options. The starting point when defending a case in this way is Code C of the Police and Criminal Evidence Act 1984. Under Code C, a custody sergeant must call an appropriate adult whenever he is told, or has information, that a detainee might suffer with a recognised mental health condition (including anxiety and depression). This requirement is not optional, it is mandatory. In Miller v DPP (2018), a suspect was not convicted of a motoring offence where the police had breached Code C of PACE, despite him being under the influence. In Chief Constable of Avon and Somerset v Singh (1987), the court drew a comparison between someone who cannot understand the procedure due to a language barrier and someone who because of 'mental stress' may not understand. 

This is, of course, a complex defence and may require some medical evidence. We may even choose to instruct an independent psychotherapist to prepare a report on your mental health. 

We can also check the custody record, police interview, specimen procedure and medical evidence to see whether your mental health affected the way you were treated or the reliability of the evidence.

Is my mental illness a defence? - Summary 

1. Drink Driving
   Your state of mind is incredibly important in drink driving cases. Code C of the Police and Criminal Evidence Act lays the ground rules for the detention of suspects in police custody. If police had reason to think you were vulnerable, they should have considered whether you needed an appropriate adult or other safeguards under Code C. If safeguards were missed, we'd look at whether that affected your understanding of the breath test or the evidence against you. This doesn't give you a right to refuse a specimen. Failing to provide one without a reasonable excuse is a separate criminal offence.

    
2. Drug Driving
   The same rules apply in drug driving cases. If your mental health made it harder to understand or communicate about the procedure, we can check whether the police recognised that and followed the safeguards required by Code C.  
3. Failing to provide a specimen (breath, blood or urine)
   The offence of failing to provide a specimen, contrary to Section 7(6) Road Traffic Act 1988, can only be committed without reasonable excuse. Reasonable excuse is your reason, or excuse. A reasonable excuse may apply where you couldn't provide a specimen because of a physical or mental health condition, which directly caused the failure. M.A.J. Law has successfully argued this defence for clients experiencing panic attacks, anxiety, depression and alcohol dependence. Whether the defence succeeds depends on the evidence in your individual case. The CPS road-traffic guidance explains how the CPS approaches failing to provide a specimen. To find out whether you have a reasonable excuse defence, please call a member of our team.

Useful Information - Getting Help You should always speak with your GP if you feel down on a regular basis. The evidence from your GP (even a written letter) could form the evidential basis of a defence.

If you don’t see your GP, they won’t be able to comment on your condition.

If you’re concerned about someone’s drinking, or your own, Drinkaware runs a free, confidential helpline: 0300 123 1110

Can mental health affect your sentence for a driving offence?

Yes, it can. A mental health condition can sometimes reduce how much blame the court places on you if there is a clear link between your condition and the offence, according to the Sentencing Council guidance on offenders with mental disorders.

Courts can also consider treatment needs and your personal circumstances. This doesn't guarantee a lower sentence, and it will not remove a driving ban where the law says a ban is mandatory.

If your mental health is relevant after a guilty plea or conviction, we can put that information before the court as mitigation. We can also advise whether special reasons may apply to the facts of your case.

What happens to your driving licence after drink or drug driving?

The legal alcohol limits are 35 micrograms per 100 millilitres of breath, 80 milligrams per 100 millilitres of blood and 107 milligrams per 100 millilitres of urine, in England and Wales. If you're convicted of driving or attempting to drive over the limit, or of driving while unfit through drink because alcohol affected your ability to drive safely, the maximum penalty is six months in prison, an unlimited fine and a driving ban of at least one year.

The minimum ban rises to three years if you have two relevant convictions within ten years.

A drug driving conviction can also result in a driving ban, fine, imprisonment and a criminal record. Relevant drink driving and drug driving endorsements - the offence codes shown on your driving record - generally stay on the record for 11 years from conviction.

This doesn't necessarily mean you have to tell employers or anyone else about the conviction for 11 years. That depends on the sentence and the rules on criminal record disclosure.

Some people convicted of drink driving are classed as high-risk offenders. If that applies to you, you must pass a DVLA medical assessment before getting your driving licence back. M.A.J. Law also has guidance on High Risk Offenders and on how to get your licence back early.

A court may also offer an approved drink-drive rehabilitation course if your ban is at least 12 months. Completing the course normally reduces the ban by a quarter. It does not replace treatment if alcohol addiction or mental health problems are part of the reason for the offence.

Mental health conditions and the DVLA

If you have mental health conditions that affect your ability to drive safely, you must tell the DVLA about them.

For a car or motorcycle licence, mild-to-moderate anxiety or depression will not normally need to be reported unless it causes significant problems such as poor concentration, serious changes in behaviour or suicidal thoughts.

If anxiety or depression is severe and causes problems, you must stop driving and tell the DVLA.

What mental health conditions can stop you driving?

A diagnosis doesn't automatically mean you lose your licence. The DVLA looks at how the condition affects you, including your symptoms, how stable you are, your treatment, your medication and whether you can drive safely.

An acute psychotic illness, mania or hypomania, and severe anxiety or depression with significant symptoms can mean you need to stop driving and tell the DVLA. ADHD or autism also doesn't automatically stop you having a licence, but you should tell the DVLA if the condition or medication affects safe driving. The rules for bus and lorry drivers are generally stricter.

If a medical condition affects your driving and you don' tell the DVLA when you are required to, you can be fined up to £1,000. You may also be prosecuted if you are involved in an accident because of the condition.

Getting help for alcohol abuse, drug addiction and mental health problems

If you're struggling with alcohol or drug abuse or mental health problems, getting support can help. It can also create medical records that may be relevant to your case. You can start with your GP, but you don't always need a referral.

The NHS alcohol support service lists local alcohol services and Drinkline. The NHS drug addiction guidance explains how to contact a local drug service directly and find support through FRANK.

At a first appointment, you'll usually be asked about your alcohol or drug use, mental health, work, family and housing, then agree a treatment plan. Treatment can include talking therapy such as CBT, support to withdraw from alcohol or drugs safely, help to prevent relapse, medication and support groups.

If you are physically dependent on alcohol, get medical advice before trying to stop drinking suddenly because withdrawal can be dangerous.

Support is also available if you are affected by a family member’s drinking or drug use. NHS resources point families towards organisations including Al-Anon and Adfam. If your case involves mental health, alcohol or drug use, or medication, tell your solicitor. Give them any relevant GP letters, treatment records or other medical evidence you have so they can decide what may help your case.

 

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