Man City’s Yaya Toure handed ‘biggest ever’ drink driving fine of £54k

Because people on Twitter know I’m obsessed with drink driving law quite a few of them pointed me to the case of Yaya Toure earlier this week. My daughter has been ill so I’ve not had a proper chance to look at it until now but when I did I thought it was worth a write up to explain some of the confusion that seemed to abound on social media about this case.

The accusation is that he drove after consuming so much alcohol that the proportion of it in his breath exceeded the prescribed limit – that’s drink driving to you. To his credit, he immediately accepted that he had committed the offence and entered a guilty plea at court, but a hearing was scheduled for him to argue that his drink had been spiked.

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Yaya Toure

If somebody spikes your drink with alcohol and that causes you to be over the drink driving limit when you drive, you can avoid a driving ban arguing that the spiking is a special reason not to disqualify you.

Mr Toure’s case is interesting because his reading was high yet he is teetotal for religious reasons (and presumably because being a highly-fit athlete doesn’t mix well with binge drinking). That didn’t stop District Judge Lucie saying, “the reading is a high one and it is inconceivable that you were unaware of having consumed alcohol.” Anybody who has experience of DJ Lucie in drink driving cases will not find that surprising in the slightest.

In his evidence, Mr Toure told the court that he had been to a party where he was the designated driver for himself and his friends. He told the court that he poured himself Diet Coke from a jug. He said that the Coke tasted odd and that he felt tired. He denied recognising the signs of intoxication, which is perhaps not surprising if he does not drink.

I am surprised by Mr Toure’s decision to go down the special reasons route if those were his instructions from the beginning and even more surprised by the District Judge’s reason for conviction, assuming the press reports are accurate (which they often are not).

While I do not think it inconceivable that a teetotaller would fail to recognise that he was intoxicated I do find it inconceivable that none of the lawyers in the room that day were aware of the case of Robson v DPP in which a Rastafarian who was also teetotal for religious reasons was refused special reasons on the basis that he failed to make sufficient enquiries as to the make-up of the fruit punch he was drinking. The similarity with Mr Toure’s decision to pour himself some Diet Coke from a communal jug without enquiring as to its contents is striking. The problem only escalates once you remember that Mr Toure gave evidence that the Coke tasted odd – a warning sign to any driver that they should check what they are drinking. In those circumstances, it is difficult to see how the special reasons application could ever succeed.

For the special reasons application to succeed Mr Toure’s account would have to be that he did not know the Coke contained alcohol, had no reason to suspect and that he had made reasonable enquiries about what he was drinking. Reasonable in this case would probably include asking the host, “what’s in that jug? Is it just coke?”

Turning to the sentence imposed. The case made headlines because of the size of the fine, £54,000. This was reduced from £81,000 following Mr Toure’s guilty plea. It is the largest fine ever imposed on a drink driver, although that may not be surprising since the fine was capped at £5,000 until relatively recently.

One area in which Mr Toure may wish to consider an appeal is in the length of the disqualification imposed upon him. The news reports tell us that Mr Toure blew 75 microgrammes of alcohol in 100 millilitres of breath, which is slightly more than double the legal drink driving limit. The sentencing guidelines tell us that this should attract a ban of around 18 months. The District Judge imposed 18 months but also accepted that Mr Toure had unknowingly consumed alcohol. If we look at the sentencing guidelines we see that under the heading “factors indicating lower culpability”, number 2 is “spiked drinks… even where not amounting to special reasons”.

I happen to know that this judge will not reduce the disqualification to reflect the guilty plea but there is no reason why the ban should not be reduced to reflect the fact that Mr Toure did not intend to drink and drive and did not realise he was doing so until shown the breath test result by the police. I have acted in similar cases and have successfully argued that the driving ban should be reduced to the 12-month minimum plus a reduction for the drink driving rehabilitation course.

I accept that the DJ reached the view that Mr Toure should have known he was intoxicated, but I do not see how such an argument can stand up to even the mildest scrutiny. By way of analogy, carbon monoxide is a gas that affects your perception of the world around you as it kills you, so you would be highly motivated to do something if you realised you were being poisoned by it, yet neither I nor you would recognise it happening if we were being killed by it because we’ve never experienced it – indeed that is why the stuff is so dangerous and kills people every year! To argue that somebody who does not consume alcohol would recognise the effect of alcohol upon them is simply not sustainable. For that reason, I think there is scope for an appeal based on the facts reported in the press.

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Special reasons: a case study

The following is a case study based upon news reports, the subject of this story was NOT represented by Oxford Drink Driving Solicitor

According to news reports this week, Alan Otterburn appeared at court in Norwich accused of drink driving.  He told the court he had received an urgent call to get to the hospital quickly as his mother had just hours to live.  He rushed to see her, but was stopped by the police for speeding and they quickly realised he had been drinking.

Man accused of drink driving blows into a hand held breathalyser

Special reasons can save a driving licence if you blow over the drink driving limit

He was arrested and at the police station was found to have 82 microgrammes of alcohol in 100 millilitres of breath, which is well over double the drink driving limit of 35µg per 100ml.

At court he pleaded guilty and asked the court to take the circumstances into account as a special reason.  If the court agreed this was a special reason it would mean that the judge would no longer be required to disqualify Mr Otterburn from driving.

So, what is a special reason?  Lord Goddard was asked to decide this question in 1946 and, presumably having better things to do with his time, decided to adopt a definition from Northern Ireland, which is: “… a mitigating or extenuating circumstance, not amounting in law to a defence to the charge, yet directly connected with the commission of the offence.”

We can see that Mr Otterburn’s explanation for drink driving is a mitigating or extenuating circumstance.  It is not a defence in law to drink driving and it is directly connected with the commission of the offence – had he not received the call he would not have been driving.  So, on the face of it Mr Otterburn has a special reason to avoid disqualification.  However, District Judge Peter Veits ruled against Mr Otterburn finding that there was no special reason and thus that he was obliged to disqualify him from driving.

Given that Mr Otterburn’s explanation fulfils the requirements for a special reason why then did the district judge find against him?  The answer to that lies in the evidence given by Mr Otterburn and the case of R v George John Baines, which was decided in 1970.

In Baines case, he argued that he should not be disqualified as he had only driven to help his wife’s elderly mother who had run out of petrol after midnight and a long way from home.  Mr Baines came unstuck because he failed to consider whether there might be another way he could help his mother-in-law that did not involve him drink driving.  The court will only grant a special reason where driving is the only option, Mr Baines lost his case.

Rows of taxis waiting at a taxi rank

If you claim special reasons the court will want to know why you could not use some other form of transport

46 years after Mr Baines lost his case through his failure to think through his options, Mr Otterburn gave evidence telling District Judge Veits that, “I didn’t think about getting a taxi.”  The news report goes on to say that he did not think he could use public transport nor get a lift from a neighbour, the suggestion being that no effort was made to discover whether he could have travelled to the hospital by another means.

The moment the court heard that there had been no real exploration of other options Mr Otterburn’s case was doomed to fail in the very same way Mr Baines case had done nearly half a century before.

I am sure that Mr Otterburn’s solicitor advised him about the likelihood of his winning the special reasons hearing based on his instructions, but this case shows why it is so vital that solicitors have a strong grasp of the law when they appear in drink driving cases.