The Assumption that the Proportion of Alcohol or a Drug at the Time of the Offence was not Less than in the Specimen
| Author | Pauline M Callow |
| Pages | 303-325 |
The Statutory Assumption
Chapter 7
The Assumption that the Proportion of Alcohol or a Drug at the Time of the Offence was not Less than in the Specimen[controlHT]
1. The Statutory Assumption
See s 15(2), Road Traffic Offenders Act 1988, on the assumption that the proportion of alcohol 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 3, under the heading “Back-Calculation”, page 175, and the cases under the heading “The Amount Said to Have Been Consumed” in Chapter 6, page 272.
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 175) did not extend the admissibility of evidence of “back tracking” to a defendant. The motorist was convicted.
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.
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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 a.m. 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 five 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 own admission to the police; and that the prosecution had failed to prove that the motorist had been over the prescribed limit at the time of driving. The magistrates accepted the submission and dismissed the charge. The prosecutor appealed.
Question(s) for the Court: Whether on the undisputed evidence, the justices were required to make the assumption in s 10(2), Road Traffic Act 1972, as substituted (proportion of alcohol at time of offence not less than in the specimen unless defendant proves consumption of alcohol after ceasing to drive which took him over the limit), notwithstanding that they heard no evidence of the alleged offence or of when the respondent had driven his car in relation to his consumption of alcohol, and thought that the investigating officer should have made more inquiries than he did.
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The Statutory Assumption
Held: “… the officers had reasonable cause to suspect that the driving had taken place when the respondent had alcohol in his body, and that there was still alcohol in his body so as to enable them to require him to provide a specimen of breath under section 7 of the Act …
“Where a breath sample that has properly been taken is found on analysis to be positive, then it is for the defendant, if he is to raise the question of drink having been taken after driving, to discharge the obligations that are set out in section 10(2). It is not for the prosecution to seek to prove a precise period of time of driving, or bracket of time of driving, before that reversal of the burden of proof provided under the section comes into effect.
“Here, the evidence … was a clear admission by the respondent that he had been driving … that he had taken his last drink … at 11 p.m., and … that, when samples were taken at about 4 a.m., the proportion of alcohol in his breath exceeded the prescribed limit. It is the very type of case for which the assumption in section 10(2) and the reversal of the burden of proof in that provision is aimed.”
The answer to the question was “yes”. Appeal allowed.
Millard v DPP
[1990] RTR 201, [1990] Crim LR 601, 17 February 1990, QBD (DC) Evidence of alcohol consumed before driving is inadmissible to rebut the presumption; the presumption is irrebuttable.
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. He had driven to a public house, parked his car and drunk almost all of a large whisky; he then moved the car to another parking place, went back to the public house and drank almost a pint of beer. Police officers spoke to him, as a result of which the breath testing procedure was commenced; breath specimens proved positive. A blood specimen was also provided, which was, again, positive.
At the hearing, the motorist submitted that the justices should admit expert evidence for the purpose of calculating retrospectively the effect of the whisky drunk before driving and of the beer drunk after driving, with a view to establishing that at the time of driving his alcohol level had been below the limit. The justices held they could hear such evidence only in respect of the alcohol taken after driving, i.e. the beer; the motorist did not adduce such evidence.
The justices convicted. The motorist appealed.
Question(s) for the Court: Whether, on a charge of driving with excess alcohol, a defendant may adduce evidence (i) of his consumption of alcohol prior to driving his motor vehicle and (ii) of a medical and scientific nature to explain the effect of such alcohol consumption on the proportion of alcohol in his breath, blood or urine at the time of driving, for the purpose of establishing that at the time of driving the level of alcohol concentration was below the prescribed limit, notwithstanding that at the time the specimen for analysis was provided, the proportion of alcohol exceeded the prescribed limit.
Held: “The evidence sought to be admitted … was designed to destroy what justices, under section 10 of the Act [assumption that proportion of alcohol at time of offence not less than in the specimen unless defendant proves
CHAPTER 7: THE STATUTORY ASSUMPTION
consumption of alcohol after ceasing to drive which took him over the limit] must in certain circumstances assume …
“… the assumption in section 10(2) when it comes to be made is irrebuttable … the justices … were entirely right”.
Appeal dismissed.
Parker (Lee Christopher) v DPP
[2001] RTR 240, 7 December 2000, QBD (DC)
The irrebuttable statutory assumption does not infringe the right to a fair trial or the presumption of innocence.
A motorist had been convicted of driving with excess alcohol, contrary to s 5(1)(a), Road Traffic Act 1988. The lower of two breath readings was not more than 50 µg alcohol in 100 ml breath and the motorist exercised the option under s 8(2) to provide a specimen of blood. Analysis of the blood revealed 81 mg alcohol in 100 ml blood.
The motorist instructed an expert, who concluded that the motorist’s blood alcohol analysis was consistent with his stated consumption of alcohol, namely two pints of lager; and that the blood alcohol level at the time of driving, more than an hour earlier, was unlikely to have exceeded the statutory limit.
The magistrates convicted the motorist and his appeal to the Crown Court was dismissed. He appealed further.
Held: “… [It is submitted on behalf of the motorist] that the Convention...
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