How Mental Health can help your case

The law and mental health

A 2021 study showed that anxiety and depression affects nearly one if five UK adults. Unfortunately, mental health, alcohol and drugs fall hand-in-hand. If you have been charged with drink or drug driving - and think that you might suffer from a mental illness - we can help.

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 being the most common.

We understand that mental health is a sensitive subject. If you would like to discuss your case in confidence, please call a member of our team on 01514228020. Alternatively, visit our website to request a call-back.


The effects of alcohol

Alcohol is a depressant. This means that it can disrupt the delicate balance of chemicals within the brain. Alcohol can affect parts of the brain that control movement, speech, judgment, and memory. It can even affect your long-term mental health. 

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. 

Have a think about what happened at the police station. Do you remember the police asking you questions about the breath test and giving you options? A suspect who suffers with a recognised mental health condition may not fully understand police procedures.

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.

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.

- Conor Johnstone, Solicitor

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.

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.


Mental Health Defences in Drink and Drug Driving Cases

You may have a defence to drink or drug driving if you suffer with a recognised mental illness. 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 recall this document being completed, you may have a full defence (please call us to discuss).

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. 

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. Any person who suffers with a mental health condition must be provided with an appropriate adult. If the appropriate adult was not provided, you may not have 
    understood the nature or purpose of the breath test procedure. By law, you must understand your options during the breath test procedure - including the option to refuse the test. 
  2. Drug Driving
    As like with drink driving (above) there is a requirement for any person in police custody suffering with a mental health condition to be provided with an appropriate adult. The reason relates to the right not to self-incriminate and the statutory safeguards that serve to protect suspects in police custody.   
  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, for not providing a sample when required to do so by the procedural officer.

    Reasonable excuse can arise from both a medical and ‘mental’ condition. M.A.J. Law have successfully argued this defence for clients who suffer with the following;

    • Panic Attacks
    • Anxiety
    • Depression
    • Alcoholism
    If we can satisfy the court that you had a reasonable excuse for not providing a specimen, the court cannot convict you. 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

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NEXT STEPS: Free Legal Advice from M.A.J Law

M.A.J Law are a specialist team driving defence solicitors. We believe that every motorists has the right to independent legal advice. For that reason, we offer every motorist free specialist initial advice no matter what your circumstances.