DPP v Winstanley
| Jurisdiction | England & Wales |
| Judgment Date | 29 January 1993 |
| Date | 29 January 1993 |
| Court | Queen's Bench Division |
Queen's Bench Divisional Court
Before Lord Justice Kennedy and Mr Justice Clarke
Road traffic - breath specimen replacement - second request reasonable
Where a police officer had informed a driver arrested for drink driving that any specimen given to replace the breath specimen would have to be a specimen of blood and it then became apparent that no doctor was available, the officer was entitled to ask the driver to provide a specimen of urine instead.
Where a driver exercised his option to provide a replacement specimen but, through no fault of his own, was unable to provide such a specimen, the prosecution could rely on the breath specimen.
The Queen's Bench Divisional Court so held in a reserved judgment allowing a prosecution appeal by way of case stated against the dismissal by City of London Justices on September 11, 1990 of an information against Robert Winstanley of driving with excess alcohol, contrary to section 5(1)(a) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988. The case was remitted to the justices for the hearing to continue.
Mr Jeremy Carter-Manning for the prosecution; Mr Barry Myers for the driver.
LORD JUSTICE KENNEDY said that the driver had opted to provide a specimen of blood or urine in place of the breath specimen. The police officer had requested a specimen of blood.
Attempts had been made to contact a doctor, during which time the driver was allowed to visit a toilet. No doctor was available so the driver was asked to provide a specimen of urine. The driver agreed but was unable to do so.
The driver submitted that once the custody officer had decided that, subject to medical advice, any replacement specimen would have to be a specimen of blood, he could not thereafter, when it became clear that no doctor...
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