Practice and Procedure


PUBLISHED April 1, 2003

Magistrates had been correct to admit evidence from a breath specimen instrument as operating procedures had been followed correctly.Appeal by way of case stated against the decision of Bridgewater magistrates on 20 May 2002. The defendant ('M') was convicted of driving a motor vehicle after having consumed so much alcohol that it exceeded the prescribed limit contrary to s.5(1)(a) Road Traffic Act 1988 and Sch.2 Road Traffic Offenders Act 1988. Breath specimens were taken with an instrument called the Lion Intoxilyser 6000. After the second breath specimen, it recorded "interfering substance" on its display. At the hearing, M contended that in order to establish two valid readings the prosecution had to prove that the readings were taken in a cycle which included a self-calibration by the instrument before the first and after the second reading. The question contained in the case stated on appeal was whether the magistrates had been correct to admit the evidence of the first two readings when no calibration occurred at the end of the first cycle. M contended that proper operation was irrelevant because the law now required calibration before and after specimens had been received in any one cycle. The DPP contended that: (i) the operating procedures for the Lion Intoxilyser 6000 were followed satisfactorily; and (ii) provided the instrument was functioning correctly, it was not necessary for both specimens to be taken during the same cycle to meet the requirements of the statute.HELD: (1) Based on the evidence of this case and the magistrates' findings, the test described by Mustill LJ in Chief Constable of Avon & Somerset Constabulary v Creech (1985) (1986) RTR 87 that "the ascertainment by means of an approved device of the proportion of alcohol in a specimen must be performed in conformity with the operating procedures of the device in question" had been met. (2) The results from both specimens had been valid and admissible.Appeal dismissed.

[2003] EWHC 225 Admin