Replacement Specimens: Lower Breath Reading No More than 50
| Author | Pauline M Callow |
| Pages | 107-140 |
The Duty to Put the Option
Chapter 2
Replacement Specimens: Lower Breath Reading No More than 50
See s 8(2), Road Traffic Act 1988 (repealed, with effect from 10 April 2015, by s 52 and sch 11, Deregulation Act 2015) – if the lower breath reading is no more than 50, the suspect may claim that it should be replaced under s 7(4) by a blood or urine specimen. On the procedure to be followed, see DPP v Warren (page 65) and DPP v Jackson; Stanley v DPP (page 69).
1. The Duty to Put the Option
Anderton v Lythgoe
[1985] 1 WLR 222, [1985] RTR 395, 29 October 1984, QBD The investigating officer has a duty to inform the suspect of the option.
A motorist had been charged, inter alia, with driving with excess alcohol contrary to s 6(1), Road Traffic Act 1972, as substituted by s 25(3) and Sch 8, Transport Act 1981. Both breath analyses were 50 µg alcohol in 100 ml of breath. The motorist was not offered the opportunity of providing an alternative specimen under s 8(6), Road Traffic Act 1972 as likewise substituted (lower of two breath readings no more than 50). The magistrates found that the driver should have been informed of the right under s 8(6) and dismissed the charge. The prosecutor appealed.
Question(s) for the Court: Whether on the facts, the justices were correct in dismissing the charge.
Held: “… Were [the officers obliged to tell the defendant of his right under s 8(6)]? … the legislation, by section 8(6), contemplates two possible ways in which guilt or innocence are to be established. One is by the breath sample. The other – if the subject so chooses – is by the sample of blood or urine. The alternatives must both be made available to the subject if the plain purpose of the subsection is to be achieved. To obtain, as the police did, a breath test showing no more than 50 microgrammes of alcohol and to put that forward as itself conclusive of guilt, is an inadequate performance of the statutory duty imposed by the subsection.”
The answer to the question was “yes”; appeal dismissed.
CHAPTER 2: REPLACEMENT SPECIMENS
Reeves v Enstone
The Times, 15 February 1985, 7 February 1985, QBD (DC) There is no duty to offer the option where the reading is 51.
A motorist had been convicted, under s 6(1), Road Traffic Act 1972, as substituted by s 25(3) and Sch 8, Transport Act 1981, of driving with excess alcohol. The lower of two breath analysis readings was 51 µg alcohol in 100 ml of breath. The motorist was not offered the opportunity of providing an alternative specimen under s 8(6), Road Traffic Act 1972 as likewise substituted (lower of two breath readings no more than 50). The justices found that the statement produced by the machine could err to a small degree – 2 or 3 points either way, but that the machine was operating within the acceptable limits of tolerance; the motorist had not been entitled to give an alternative sample. The motorist appealed.
Question(s) for the Court: Whether the justices were wrong in law.
Held: “ … I … have no doubt that Parliament fixed the level of 50, being aware that no absolute standard of precision would be achieved and thinking that that figure was far enough above the limit of 35 to leave a reasonable margin for error.
“It cannot … have been the intention of Parliament to require police officers carrying out these tests in every case to examine the peculiarities of the machine or the calibration certificate produced by its manufacturers when it was first brought into use. Accordingly, in finding as they did that the constable was entitled to accept the figure of 51 and therefore to refrain from offering the opportunity to provide a blood or urine test to the Appellant, the Justices were absolutely right.”
Appeal dismissed.
DPP v Poole
[1992] RTR 177, 22 March 1991, QBD (DC)
Where the motorist frustrated the officer in the performance of his duty to explain the motorist’s rights, the motorist was not entitled to be acquitted.
A motorist had been charged with driving with excess alcohol, contrary to s 5(1)(a), Road Traffic Act 1988. Breath analysis had revealed a lower reading of 41 µg alcohol in 100 ml breath. The police officer administering the procedure had endeavoured to explain to the motorist his right under s 8(2), Road Traffic Act (lower of two breath readings no more than 50) to provide instead a specimen of blood or urine, but the motorist refused to listen and did not provide an alternative specimen.
The motorist argued before the justices that there was no case to answer in that the officer had not fulfilled his obligation fully to communicate to him the option to provide an alternative specimen and that the prosecutor could not therefore rely on the breath analysis. The justices found that there was a case to answer since the officer had made all reasonable efforts to inform the motorist of his right. The motorist then gave no evidence. The justices went on to find that the respondent had not been informed of his right under s 8(2) and dismissed the case. The prosecutor appealed.
Question(s) for the Court: (1) Whether the justices were right to find on a submission of no case to answer that the police officer had made all reasonable efforts to inform the respondent of the available option under s 8(2) to provide
108
The Duty to Put the Option
a specimen of blood or urine to replace that of breath; (2) whether they were then right, having found a case to answer on the facts that the police officer had made all such reasonable efforts, and the respondent having called no evidence, to dismiss the case; (3) whether they were correct in law to find (i) that an officer is under a legal duty in appropriate cases to explain the options in s 8
(2), and (ii) that if the officer fails to complete the substance of the explanation for whatever reason … the respondent is entitled to be acquitted …
Held: The answer to question (1) was “yes”; the answer to question (2) was “no”.
The answer to question 3(i) was that “an officer is under a legal duty to take all reasonable steps to explain the options in the relevant section”.
The answer to question (3)(ii) was “No. If by reason of his own actions the defendant has frustrated the performance of the duty by the police officer to explain to him his rights, then the respondent … is not entitled to be acquitted.”
Appeal allowed.
CPS v Jolly (Patrick Anderton)
[2010] EWHC 1616 (Admin), unreported, 5 May 2010
The investigating officer is not required to explain to the suspect the implications of the choice, in particular the officer need not explain the advantages or disadvantages of accepting or declining the option.
A motorist had been charged with driving with excess alcohol contrary to section 5(1), Road Traffic Act 1988. Breath analysis revealed 48 µg alcohol in 100 ml breath and the officer administering the procedure therefore offered the motorist the option, under s 8(2), Road Traffic Act 1988 (lower of two breath readings no more than 50), of replacing the breath specimen with an alternative specimen. The officer read the wording from the MG DD form. The motorist said he did not understand the option and asked the officer to clarify it. The officer offered to read the paragraph again, saying he could not assist further by giving advice. The motorist declined to have the paragraph read again, and declined the statutory option “with the reservations” that he did not “understand the issues”. He was acquitted of driving with excess alcohol on the basis of the breath analysis. The prosecutor appealed.
Question(s) for the Court: Whether the magistrates were correct in law to acquit on the basis that the officer had failed sufficiently to explain the procedure and the implications of the choice being offered, so that the motorist could make an informed decision.
Held: “… as the case has developed it is really an issue which turns on whether additional information should be given to a driver, as opposed to the question of whether he has fully understood the nature of the options available to him. However, if the justices were right and it were necessary to focus on the understanding of a defendant, and to be satisfied that he fully understood the implications of the offer made available to him, that would make the life of officers and the courts extremely difficult. There would be swathes of cases where it would be alleged by a driver that he had not fully understood the nature of the case, that there was not an adequate explanation, and there may
CHAPTER 2: REPLACEMENT SPECIMENS
be disputes as to how much he had to drink and whether he was in a fit state to understand what was being said to him, and so forth. I do not think that issues like that are intended to be a subject for consideration by the court. The crucial question is that the officers make information available, no more no less.”
The answer to the question was “no”; appeal allowed.
110
Information to be Given about the Breath Analysis
2. Duty to Tell Suspect that Breath Analysis did not Exceed 50
See also R v Bolton JJ, ex p Khan (Zafer Alli), page 555 – where the option was offered but the suspect was not told that his breath-alcohol did not exceed 50, and he later pleaded guilty to driving with excess alcohol, the court would not, in the absence of conduct analogous to fraud, intervene.
DPP v Hill-Brookes
[1996] RTR 279, 27 June 1995, QBD (DC)
Where the officer told the driver that the lower breath reading was between 40 and 50, without saying that that was over the limit, this was sufficient to meet the criteria in DPP v Warren (page 65). See also DPP v Ormsby [1997] RTR 394, QBD (DC), and Chatelard v DPP, page 126, to the same effect.
A motorist had been charged with driving with excess alcohol in blood, contrary to s 5(1)(a), Road Traffic Act 1988. The lower of two breath analyses was 49 µg alcohol in 100 ml breath. The motorist was therefore offered the option, under s 8(2), Road Traffic Act 1988 (lower of two breath readings no more than 50) of replacing the breath specimen with an alternative specimen. The officer used the words “As the breath...
To continue reading
Request your trial