Drivers stopped after an accident with alcohol in their system sometimes claim they only drank after the incident – from stress, to calm down, while waiting for the police. Is this an effective line of defence?
What This Line of Defence Involves
Where the driver who caused the accident was genuinely sober at the time of the incident and consumed alcohol only afterwards – strictly speaking, they did not commit the criminal offence under Article 178a § 1 of the Criminal Code or the misdemeanour under Article 87 § 1 of the Code of Misdemeanours, because both provisions require driving in a state following use of alcohol or in a state of intoxication. The driving had already ended, so the element of “operating a vehicle” is not satisfied.
This is the logic behind the defence. In practice, however, it faces serious obstacles.
Article 178 § 1 of the Criminal Code
Article 178 § 1 of the Criminal Code expressly covers the situation where the driver who caused the accident consumed alcohol or took a narcotic after committing the offence under Article 177 of the Criminal Code but before being tested by an authorised authority. In such a case, the court imposes a sentence from the lower limit of the statutory range increased by half, up to the upper limit increased by half.
This means that even where the driver successfully demonstrates that they drank only after the accident – they can still be convicted under Article 177 for causing the accident itself, and the “drinking afterwards” will constitute a sentencing aggravation. The sentence for an accident causing bodily injury (Article 177 § 1 – up to three years) increases to four and a half years; for a fatal accident (Article 177 § 2) – up to five years, and under § 1a at least five years and up to twenty years.
How the Court and the Expert Verify This Defence
The claim “I drank after the accident” is scientifically verifiable. A forensic toxicologist can carry out a retrospective calculation of alcohol concentration using the Widmark method. Working from the test result, the time of the test, body weight, sex and the declared quantity and time of alcohol consumption, the expert calculates what concentration the driver would have had at the time of the incident.
Where the calculations show that the driver could not have had the measured concentration at the time of the incident given the declared quantity and timing of consumption, the defence is credible. Where the calculations show that the concentration at the time of the incident must have been close to the test result, the defence fails.
What Evidence Is Needed
A bare assertion without supporting evidence is easy to rebut. A credible “I drank afterwards” defence requires concrete corroboration.
Witnesses. People present at the scene who saw the driver drinking after the accident are the strongest evidence – passengers, passers-by, others waiting for the police.
A receipt or invoice. An alcohol purchase at a nearby shop, with a time and location confirming it occurred after the incident.
Recordings. Shop CCTV, street cameras, footage from witnesses’ phones.
Packaging. Bottles or cans found with the driver that can be linked to a purchase made after the incident.
Widmark analysis. Where the declared quantity and timing of consumption are consistent with the test result, a Widmark analysis can support the driver’s account.
When This Line of Defence Will Not Work
The defence fails where: there is no evidence beyond the driver’s own word; the Widmark analysis shows that the test result would have been impossible given the declared quantity of alcohol and time of consumption; witnesses contradict the driver’s account or give inconsistent statements; CCTV footage shows the driver’s behaviour before the incident suggesting the effects of alcohol.
What to Do Immediately After an Accident
Do not consume alcohol after an accident – even if you are certain you were sober. Drinking after the incident is a sentencing aggravation regardless of whether you were driving under the influence. Call the police and remain at the scene. Contact a lawyer before making any statement.
Contact Us
If alcohol was detected in your system after an accident and you maintain that you consumed it only after the incident, it is worth discussing your defence strategy with a lawyer as soon as possible.
It pays to be properly prepared: both in knowing what you can claim and in having a clear strategy.
We handle cases for drivers in Poznań and across the Wielkopolska region, with in-person and online consultations available for clients elsewhere in Poland.
Adwokat Marta Krzyżanowicz and Adwokat Michalina Koligot Law Firm “Adwokat dla Kierowców w Poznaniu”
ul. Adama Mickiewicza 18/3, 60-834 Poznań
tel. +48 795 001 536 · +48 531 335 713
kontakt@adwokatdlakierowcy.pl · www.adwokatdlakierowcy.pl
This text is for general information purposes only and does not constitute legal advice. Every case requires individual analysis.
