Challenging the Breath Testing and Breath Analysis Devices
| Author | Pauline M Callow |
| Pages | 259-302 |
Type Approval
Chapter 6
Challenging the Breath Testing and Breath Analysis Devices[controlHT]
1. Type Approval
See also Wright (Andrew James) v DPP, page 267, an “option” case, where it was not open to the motorist to adduce evidence to show that the breath analysis device was not an approved device; DPP v Memery, page 134 – courts may not rule on the approval of the device; Grant v DPP, page 16 – it was not open to the defendant to assert that the device should not have been approved; Robertson (Eric) v DPP, page 213 – software changes and the fact that the device did not detect mouth alcohol did not take it outside the scope of the approval order; Parker v DPP, page 289 – the Secretary of State had not acted ultra vires in approving a device which timed readings in GMT only; DPP v McKeown, DPP v Jones, page 290 – the fact that the printout showed the wrong time did not take the device outside its approval; DPP v Browne, DPP v Teixeira, page 293 – there is a presumption of law that an approved device is reliable; Fearnley v DPP, page 401 – it was for the appellant to adduce evidence that the software was other than the specified software before the prosecution came under a burden to prove the software; DPP v Wood, DPP v McGillicuddy, page 403 – disclosure of material concerning reliability or type approval of the breath analysis device should not have been ordered where the defence statement did not raise either of those issues; and Murphy (Gerard) v DPP, page 598 – where there was no evidence to the contrary, the device was assumed to be type approved; the approval order does not constitute expert evidence.
Bentley v Northumbria Police
[1984] RTR 276, 31 October 1983, QBD (DC)
A court may take judicial note of the approval of a breath testing device. On the facts of this case (blood specimen identified by the defendant’s surname and accompanied by a form giving a sample number), there was no evidential link between the blood specimen taken and the specimen which was analysed.
A motorist had been charged with driving with excess alcohol in blood, contrary to s 6(1), Road Traffic Act 1972. A roadside breath test was positive; at the police station, a second screening test, using an “Alcolyser” device was also positive. A blood specimen was provided; analysis revealed 247.6 mg alcohol in 100 ml blood.
CHAPTER 6: CHALLENGING THE DEVICES
At the hearing, the analyst gave oral evidence confined to the facts that he had analysed blood from a phial marked “Bentley” which had been accompanied by a form showing a sample number, and the alcohol level found; the prosecution did not put a certificate of analysis in evidence.
The motorist submitted that there was no evidence that the Alcolyser was an approved device and that the justices were not entitled to infer that it was; nor was there any reliable evidence that the sample of blood analysed was that taken from the defendant. The justices rejected these submissions and convicted the motorist, who appealed.
Question(s) for the Court: (a) Where there was no evidence that the breath test device used in the second breath test under s 9 of the Road Traffic Act 1972 was an approved device but only that it was an ‘Alcolyser’ device, whether the court could infer that it was an approved device; (b) where the evidence of the analysis of blood was provided by the analyst in person rather than by means of a certificate of analysis … whether the evidence from the analyst that the name ‘Bentley’ was on the phial of the blood analysed, was sufficient evidence to identify the sample of blood taken from the defendant as the sample of blood analysed.
Held: On (a) “… the use of the Alcolyser was in fact approved by the Breath Test Device (Approval) (No 1) Order 1979 … [the justices] were entitled to take judicial note of the fact that it was an approved device …”
On (b), “… [the justices] knew, simply, that a sample of blood had been taken from the defendant … on the day … when the offence was alleged to have been committed and that a sample of blood bearing the name of ‘Bentley’ was analysed … the question [is] whether that evidence was sufficiently cogent to establish that the sample analysed was none other than that taken from the body of the defendant.
“… it was not open to the justices upon such tenuous material to reach such a conclusion. There was no evidential link between the sample taken and the sample analysed … the sample taken may have become mixed up with other samples. There may have been more than one by the name of Bentley from whom a blood sample had been taken … A number of possible reasons can be envisaged why the sample taken may not have been the sample analysed, none of which is fanciful.” Appeal allowed.
Hayward v Eames; Kirkpatrick v Harrigan
[1985] RTR 12, 9 October 1984, QBD (DC)
The Secretary of State acted within his powers when approving the Lion Intoximeter 3000 for the purposes of analysing breath specimens, and therefore evidence obtained by using the device is admissible.
Motorists had been charged with driving with excess alcohol, contrary to s 6(1), Road Traffic Act 1972 as substituted by s 25 and Sch 8, Transport Act 1981. Both had been tested on a Lion Intoximeter 3000 which showed excess alcohol. Section 8(1)(a), Road Traffic Act 1972, as substituted by s 25(3) and Sch 8, Transport Act 1981, authorises a constable to require breath specimens for analysis by means of a “device of a type approved by the Secretary of State”. The Breath Analysis Devices (Approval) Order 1983 stated that the Lion Intoximeter 3000 was approved for the purposes of s 8(1). In Hayward v
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Type Approval
Eames the motorist had been convicted and appealed; in Kirkpatrick v Harrigan the charge had been dismissed and the prosecutor appealed.
Question(s) for the Court: Whether the Secretary of State was empowered to approve the device by virtue of s 8(1)(a) and if so, whether there was proper evidence of the defendant’s breath-alcohol exceeding the prescribed limit (Hayward v Eames); whether the Home Secretary was acting within his power – administrative or legislative – in giving his approval to the Lion Intoximeter 3000 and accordingly whether the magistrate was right in refusing to admit evidence relating to the machine (Kirkpatrick v Harrigan).
Held: “The wording of section 8 states plainly, and without any ambiguity, that a device of a type approved by the Secretary of State may be used for gauging the proportion of alcohol on the subject’s breath. The Lion Intoximeter was so approved. The fact that the approval was given before the coming into force of that particular part of the Act does not mean … that the approval is any the less real or any the less effective.” The Secretary of State was empowered to approve the device by virtue of s 8(1)(a) and there was proper evidence of the defendant’s breath-alcohol content exceeding the prescribed limit (Hayward v Eames).
“The Home Secretary was acting within his power in giving his approval to the Lion Intoximeter 3000, and the magistrate should not have refused to admit evidence relating to that machine (Kirkpatrick v Harrigan).
The answer to both questions was “yes”. Appeal in Hayward v Eames dismissed; appeal in Kirkpatrick v Harrigan allowed.
Chief Constable of Northumbria v Browne
[1986] RTR 113, 30 October 1985, QBD (DC)
A drafting error in the description of a company which manufactures a breath analysis device does not invalidate the approval order.
A motorist had been charged with driving with excess alcohol, contrary to s 6(1), Road Traffic Act 1972 as substituted by s 25 and Sch 8, Transport Act 1981. Breath analysis by a Camic Breath Analyser showed excess alcohol. In the Breath Analysis Devices (Approval) Order 1983 (approving devices for the purposes of s 8(1), Road Traffic Act 1972 as likewise substituted), the maker of the device had been referred to as “Camic Car and Medical Instrument Company Limited”; the name of the company was in fact “Car and Medical Instrument Company Limited”. The justices found that the words describing the manufacturer were an integral and vital part of the Order and therefore doubted whether the device was an approved device; they dismissed the charge. The prosecutor appealed.
Question(s) for the Court: Whether the justices were wrong (a) “in ruling that the name of the manufacturer … was an integral and vital part of the said Order; and (b) … in coming to the conclusion that, as there had been no manufacturing company by the name of “Camic Car and Medical Instrument Company Limited” as cited in the said Order, the Camic Breath Analyser and Camic Simulator were not therefore approved devices …”
Held: The misdescription was a mistake by the draftsman. “… It was wholly unnecessary for the draftsman to have included the names of the manufacturing companies of these devices and accordingly a mistake by him in
CHAPTER 6: CHALLENGING THE DEVICES
the description of one of them does not invalidate the approval”. Appeal allowed.
Young v Flint
[1987] RTR 300, 28 April 1986, QBD (DC)
Defence counsel is entitled to cross-examine an expert witness for the prosecution to discover whether modifications to the breath analysis device could take it outside the approval order.
A motorist had been charged with driving with excess alcohol, contrary to s 6(1), Road Traffic Act 1972 as substituted by s 25 and Sch 8, Transport Act 1981. The breath testing procedure had been conducted in the normal way and two breath analyses using a Lion Intoximeter 3000 each revealed 76 µg alcohol in 100 ml breath.
At the trial, the prosecutor adduced expert evidence that the manufacturers had made certain modifications to Lion Intoximeter 3000 machines. Counsel for the defendant sought to cross-examine the witness, with a view to eliciting whether or not the modification might have rendered the device no longer an approved device. The justices refused to allow such cross-examination. They were of the opinion that the device was an approved device and...
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