Practice and Procedure


PUBLISHED November 3, 2003

A driver was under a positive duty to enquire whether a drink contained alcohol or not if he intended to drink it and drive. There came a point where the proportion of alcohol in a defendant's breath was so high that even if a special reason would otherwise apply the court should exercise its discretion not to apply it.Appeal by way of case stated against the decision of Thames Magistrates' Court on 21 August 2002 to convict the appellant ('R') of driving whilst a proportion of alcohol in his breath of 87mg per 100ml of breath exceeded the prescribed limit of 35mg breath per 100ml. R had pleaded guilty but asserted a special reason not to disqualify him. He contended that he was a Rastafarian who did not drink and that prior to being stopped by the police he had attended a social function at which he had drunk what he had thought to be non-alcoholic fruit punch. He therefore claimed that he had not known that the punch contained alcohol and that although he had felt tired he had put that down to having had "a long day". The magistrates held that R had a positive duty to make enquiries about the content of the punch but had failed so to do. On appeal, R argued that: (i) there had been no positive duty on him to make enquiries as to the content of the punch; and (ii) his failure to make such enquiries did not entitle the magistrates to find that no special reasons existed.HELD: (1) Although the magistrates had made no express finding on the issue the court would infer that R had been unaware that the punch contained alcohol. (2) However, there was force in the argument that there was a duty on a person to enquire as to the content of a drink if it might contain alcohol and the person intended to drive. A driver who assumed that a drink did not contain alcohol was taking a risk given that the purpose of the legislation was to ensure that people did not drive when over the limit. If putting forward mitigation, a driver was required to show that he had done all that could reasonably be expected to avoid committing an offence. (3) It was to be noted that even if R had assumed the drink to be non-alcoholic and had not been alerted to the presence of alcohol prior to being stopped by the police, the magistrates would still have been entitled to find that the proportion of alcohol in R's breath was so high that the court should not exercise its discretion in R's favour notwithstanding that a special reason might otherwise apply.Appeal dismissed.