Divisional Court Cases
| Date | 01 October 1970 |
| Published date | 01 October 1970 |
| DOI | 10.1177/002201837003400402 |
| Subject Matter | Article |
Divisional Court Cases
ALCOTEST
(R)
80:
EFFECT
OF
NON-COMPLIANCE
WITH
MANUFACTURER'S
INSTRUCTIONS
Rendell
v.
Hooper
IN
the
above case (1970 IW.L.R. 747) the
High
Court
had
to
consider
whether
a
departure
from
the
manufacturer's instruc-
tions on
the
lid
of
the
container of
an
Alcotest (R) 80 to fill the
bag
with
one blow vitiated
an
arrest
under
s.2(4)
of
the
Road
Safety
Act 1967
and
aconsequent charge
under
s, I(I)
of
the Act.
The
precise wording
of
the
instruction is
"The
measuring
bag
must
then
be fully inflated by one single
breath
in
not
less
than
10
and
not
more
than
20 seconds."
It
will be remembered
that
in
Webber
v.
Carey
(1969 3 W.L.R.
1169; 34 ].C.L. 113)
the
House
of
Lords overruling the Divisional
Court
held
that
the
instructions do
not
form
any
part
of
the
approved
device so
that
the
fact
that
the
defendant
had
taken drink within
20 minutes of being required to take a
breath
test
did
not
vitiate his
arrest
and
subsequent proceedings
under
s,I
(I)
of
the
Act.
In
the
instant case the defendant Rendell
had
not
filled the
bag
at
the
first blow whereupon
the
police officer conducting
the
test considered
that
the
bag
was
not
sufficiently filled to afford a
satisfactory test
and
accordingly asked the defendant to blow
into
it
again.
The
defendant gave asecond blow filling the
bagwhich
gave a
positive indication.
The
question which
the
Divisional
Court
had
to consider was whether this
departure
from the instructions pre-
vented the test from being one
with
the
approved device.
On
the
I I
March
1969
an
information was preferred against
the defendant charging
him
that
on
the
13
February
1969
at
Colyton, Devon he drove a goods vehicle on a road having con-
sumed alcohol so
that
the
proportion
therof
in his blood exceeded
the
prescribed limit contrary to s.I
(I)
of
the
Road
Safety Act, 1967.
The
case was
heard
at
Axminster magistrates' court where the
justices found the following facts.
That
a police constable driving a
police mini-van observed
the
defendant's vehicle swerving from
side to side
of
the
road. After following
the
vehicle for
half
a mile
he caused it to stop.
The
defendant's speech was slurred
and
he
smelt
of
drink.
The
defendant was told
that
he would be given a
222
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