In a drink driving case, a police officer was acting lawfully in giving the appellant the option to provide two further specimens of breath when his first specimens had resulted in an unreliable indication.Appeal by way of case stated from a magistrates' court. The appellant ('S') was convicted of driving a motor vehicle after consuming alcohol that exceeded the prescribed limit contrary to s.5(1) Road Traffic Act 1988. S provided a roadside specimen to police officers that was positive. He was arrested and taken to the police station where he was required to provide two specimens of breath for analysis on the approved machine. In his first attempt he blew incorrectly so that no reading was recorded. He was again required to provide two specimens of breath for the machine. Due to the difference in the results being greater than 15 per cent the officer could not rely on the lower of the readings. After consulting a superior the officer explained the situation to S and invited him to choose between providing further breath samples or a sample of blood. S chose to provide breath specimens which were effectively recorded. S was subsequently charged. The questions referred by the magistrates were: was the police officer acting lawfully in either requiring or giving the person the option to provide two further specimens of breath and; did the fact that the officer was acting in good faith affect whether or not he was acting lawfully.HELD: (1) Section 7(3)(bb) of the Act dealt with circumstances in which a request for blood or urine may be made. Thus, the officer was entitled to require blood or urine once the request for breath had resulted in an unreliable indication. Nothing in that section stated that the option of a further breath test could not be offered. The guidance documents on the use of the machine had no statutory force. (2) On any sensible interpretation of s.11(3)(b), each of the first two specimens did not enable the objective of the analysis to be satisfactorily achieved. It followed that once it was accepted that effectively no specimen of breath was provided there was nothing to prevent an officer requiring further specimens of breath. He was not obliged to do so. (3) R v Creech (1986) RTR 87 supported the view that specimens that were not valid did not need to be taken into account when deciding the number of specimens of breath that may be required. (4) The magistrates' question was answered in the affirmative. As there was no issue but that the officer was acting in good faith it was not necessary to answer the second question.Appeal dismissed.

[2003] EWHC 1323 (Admin)

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