The assumption that the proportion of alcohol or a drug at the time of the offence was not less than in the specimen
| Pages | 309-334 |
| Author | Pauline M. Callow |
Chapter 6
The Assumption that the Proportion of Alcohol
or a Drug at the Time of the Offence Was Not
Less Than in the Specimen
1. THE STATUTORY ASSUMPTION
See s 15(2), Road Traffic Offenders Act 1988, on the assumption that the
proportion of alcohol or of a drug in the accused’s breath, blood or urine at
the time of the alleged offence was not less than in the specimen. See also
the cases referred to in Chapter 2 under the heading “Back-Calculation”,
page 160; the cases in Chapter 5 under the heading “The Amount Said to
Have Been Consumed”, page 270; and R v Ash [1999] RTR 347 where the
Court of Appeal held that s 15(2) is specific to the offences under s 3A, s 4
or s 5 where the taking of drink or the quantity of drink is a constituent of
the offence itself; s 15(2) does not apply to an offence under s 1 (causing
death by dangerous driving).
Beauchamp-Thompson v DPP
[1989] RTR 54, [1988] Crim LR 758, 15 June 1988, QBD (DC)
Justices were right not to allow evidence to rebut the statutory assumption. Where
the motorist made no inquiry about what wine he was drinking, but later claimed
he was drinking stronger wine than usual, he did not have a special reason for
not disqualifying.
A motorist had been charged with driving with excess alcohol in blood, contrary
to s 6(1)(a), Road Traffic Act 1972 as substituted by s 25 and Sch 8, Transport
Act 1981.
At the hearing, he sought to adduce expert evidence that, although he had been
over the limit when the blood specimen was taken, he was or may have been
below it at the time of driving. The justices declared such evidence inadmissible
on the basis of s 10(2), Road Traffic Act 1972 as likewise substituted (assumption
that proportion of alcohol at time of offence not less than in the specimen
unless …); and on the ground that Gumbley v Cunningham (see page 160) did
not extend the admissibility of evidence of “back-tracking” to a defendant. The
motorist was convicted.
310 6. The Statutory Assumption
The motorist then sought to adduce special reasons for not disqualifying under
s 93(1), Road Traffic Act 1972. He said he had unknowingly drunk a stronger
wine than he usually did; the justices found, inter alia, that he had made no inquiry
into what wine he had been drinking and that he should have known he was
drinking Chardonnay rather than Riesling, which were distinctly different. They
found no special reason, and disqualified.
The motorist appealed.
QUESTION(S) FOR THE COURT: Whether the justices should have: (i) allowed
the defendant to adduce expert evidence to show the blood alcohol level at the
time of driving; and (ii) whether on the facts before the justices they were entitled
to determine there were no special reasons.
HELD: “[On (i), and on whether s 10(2) gives rise to a rebuttable or an irrebuttable
presumption] I can detect no ground for construing that as a rebuttable rather than
irrebuttable presumption, if presumption is the right word, bearing in mind that
the word in the section is ‘assumption’ … The fact that there is an exception …
seems to me to support [ that] conclusion … the justices were correct to decide
that it was not open to them to receive evidence designed to show that,
notwithstanding at the moment the test was taken … the blood-alcohol level
exceeded the prescribed limit, it may have been lower at the moment when the
defendant was driving.
“[On (ii)] … there was no question of the defendant having been in any way
misled … This was simply a case where he failed to make any inquiry or take any
precautions in relation to the quality of the alcohol which he was consuming, and,
accordingly, it was not capable of being a special reason … Quite apart from that,
the justices [found] that the defendant should have known that the wine he was
drinking … was different and heavier from the Riesling which he said he was
accustomed to drink, and on that ground also they were entitled … to find that
there were no special reasons.”
Appeal dismissed.
DPP v Williams
[1989] Crim LR 382, 14 November 1988, QBD (DC)
The assumption applies regardless of the time between the driving and the breath
analysis; it is for the defendant to prove having consumed alcohol after driving.
A motorist had been charged with driving with excess alcohol, contrary to
s 6(1)(a), Road Traffic Act 1972 as substituted by s 25 and Sch 8, Transport Act
1981. At 3.50 am police officers located a car they had been looking for; without
examining the car, they then found the driver in a nearby home. He admitted he
had driven the car; the police detected alcohol on him; he said he had last had a
drink some 5 hours earlier. He was taken to the police station, where breath
analysis was positive.
At the close of the prosecution case, the motorist submitted there was no case to
answer on the grounds that the only evidence of his having driven the car was his
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