The use of the word “loophole” is perhaps misleading and technical legal defence might be a better description. Here are a few examples:
(a) As with any drink driving and many other motoring charges, the offence is only committed if you were driving on a road or “other public place”; i.e. pub car park, supermarket car park, etc., usually during opening hours. However, the concept of “public place” is really a whole area of law on its own. Thus, if you were seen driving on that pub or supermarket car park at 3.00 in the morning, then you might be able to argue that, at that time of the night, it was not a “public place”. This is not really something which you would want to argue on your own (as it is a whole separate area of the law), and to attempt to advance such an argument without the help of a legal specialist might well be a mistake. Also, remember that if the prosecution are going to state, as part of their case against you, that the place at which you were found driving was not a “road” but, in fact, another “public place”, then they must prove this: nothing else will suffice. Once again, if you take the point, forcing them to prove that the place at which you were stopped was in fact a “public place”, then they must do this to the criminal standard of proof; in other words they must prove to the magistrates that this was a “public place”.
(b) At the police station the police must give you the full statutory warning, to the effect that, if you do not provide, then you will be prosecuted for failing without “reasonable excuse” to provide. If this does not happen (and past case law has shown that it has not always happened), then that will be the end of the case, at least as far as a section 5A offence is concerned.
(c) The evidence supporting the new section 5A offence can only come from your blood. Your breath cannot be used and neither can your urine (unlike a drink driving charge). If you have a clear and medically proven phobia concerning needles and the giving of blood then this may frustrate any later failing to provide an evidential sample charge: the defence being that you had a “reasonable excuse”.
(d) A medical defence to a section 5A charge, that is to say:
(i) The drug was prescribed or supplied to you for medical or dental purposes;
(ii) The drug was taken in accordance with the prescription or manufacturers instructions and
(iii) Your possession of the drug, before taking it was not illegal, perhaps because of an exemption given by the relevant regulations.
To raise this defence (which you have to prove on the balance of probabilities) one would really need a statement from your GP or dentist. However, once served upon, and providing not rejected by the prosecution, then your chances of winning the case would seem to be promising.
(e) An involuntary consumption of drugs due to the fact that some foolish or malicious person had fooled you in to consumption or, perhaps, had spiked your drinks. Here you would have to show that you had no knowledge of such “spiking” and had no cause to believe that your driving had been in any way impaired.
(f) You might also be able to contest a section 4, driving whilst unfit, or section 5A, driving whilst over the prescribed limit, by proving that you were responding to a genuine emergency: for instance where your child was suddenly taken seriously ill, or you were trying to escape from attackers, posing you an immediate and serious threat of injury to you. In both cases you would have to demonstrate that you ceased driving as soon as the emergency was over (thus in the case of the sick child, you did not then drive home), and that there was no alternative form of transport. This should not be such a difficult thing to do, as, in the second example, if you’re about to be attacked by a gang of yobs, then no reasonable person would expect you to attempt to book an Uber! The two examples given above are just that, examples, and there are many other factual situations which might qualify as an emergency. Once again it is vital that you obtain specialist legal representation if you are going to fight the allegation on this basis.
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