Safe Speed Forums

On another forum, someone referred to http://www.lawontheweb.co.uk/crimedrinkdriving.htm, which contains, "You do not have a right to insist on supplying a sample of blood or urine instead. If you fail to supply a breath specimen at the station you will committed an offence, unless you have a reasonable excuse. Being too drunk or unfit to supply the necessary breath specimen is NOT a reasonable excuse. A medical condition which prevents you from supplying enough breath for the machine to sample may be a sufficient excuse. If you have such a condition you must advise the police at the time."

This surprises me because I thought that being unfit to provide a breath specimen (i.e. physically incapable) to be a perfectly good reason for not providing one. For example, if you suffer a chest injury in a crash, you probably won't be able to provide a breath sample. Yet, if lawontheweb is correct, the law will punish you for having the temerity to suffer a punctured lung even if you didn't cause the accident. Similarly, I'd have thought that someone with a lung condition would automatically be exempt (I know someone who suffers from Bronchiectosis who has passed her taxi medical but can't exhale enough to provide an adequate breath sample).

However, these legal eagles say that being unfit is not a reasonable excuse and that a medical condition that prevents you from supplying enough breath only may be sufficient. Now, I'm not trying to find an out for drink drivers, but the law in this matter seems written without due regard to fair trial or justice.

Have lawontheweb got it wrong? Any other comments?

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Will

Hi Wll

Sections 7-9 of the RTA `1988 govern the procedures for obtaining evidential specimens. Unlike the roadside test - which gives indication and reason to suspect excess alcohol, this is the stuff we use in court proceedings. We use the Lion Intoximeter or Camic breath Analysers and blood/urine samples.

A requirement under s7 says that the breath specimen has to be carried out at the police station

A requirement for blood/urine is made if:

I - as arresting oficer - have reason to believe a medical problem exists - then I do not need to seek out a mad doc (Dempsey v Catton 1986 is precedent) Courts look at the objective cause anyway...

Kinsall vDPP 2003 - Divsional Court held that - because the defendant has a mouth spray for his angina at time of arrest - that did not impose an obligation of the arresting officer to consult a doctor before any specimen to be provided would be blood. The officer in the case has in fact asked specifically if there was a medical reason why blood should not be taken and he said "none"

If a person is too drunk to supply a breath specimen - that may be regarded as a "medical reason for requiring blood/urine sample (Young v DPP 1992 RTR 228 is the case to look at as this sets the precedent.

( Who said we did not have to know the Law )


If the device does not calibrate - we have to go to another police station and we can do this even if the driver has provided two specimens on the "faulty" machine. (Denny v DPP 1990)

If the printer fails (and has been known ) and arresting officer did not know of the defect - then 1985 case (Morgan v Lee) held that to be "unlawful".. The Divisional Court (Tomspn v Thynne 1986) held that blood sample could be used if we knew of defect. Once we use blood/urine as evidence - we cannot revert back to original breath test result (Badkin v CC of South Yorks 1988)



Section 11(3) of RTA 1988 states that a breath specimen must be provided in such a way as top enable the analysis to be carried out,. If a driver produces it in any other way - "they are held as "failed to provie"

As with a preliminary breath test (screening or roadside test) "fail" means "refusal. If a person elects to substitute breath test (which gave reading of no more than 50 microgrammes) with blood/urine under s2 of RTA 1988 and subsequently fails to do so - then no offence has been committed un s 7(6); you revert to the original breath test.

The issues of reasonable excuse for failing to provide were recently reviewed by Divisional Court im spp v Falzerano 2001

In this case the defendant claimed she was unable to provide because of a panic attack and was able to prove that there was medical histroy and treatment Despite evidence from her doctor that there was no reason why her condition should have prevented her providing a specimen - the magistrates decided she did have a reasonable excuse...based on demeanour of defendant in court and of course they took legal advice from the clerk .

Case law has a whole bundle of excuses -

Under the UNREASONABLE we have...

refusal until legal advice has been sought
absence of appropriate adult (if dealing with a juvenile)
refusal until solicitor is present
refusal on advice of solicitor
refusal until defanadnt had read thhrough weighty tomes of PACE
religious beliefs
metal ansuish caused by custody officer's behaviour
self -unduced intoxication

REASONABLE

mental incapacity
physical incapacity
inability to understand the requirement caused by language barrier (and not being paralytic from drink/drugs)

The courts have also been warned of need for caution when accepting claim of incapacity. particularly given the stressful nature of the procedures at the police station and effects of accident leading to this.


In the case of hospitalisation - a patient cannot be arrested until discharged - even if testing positive at the hospital (Ogburn v DPP 1994).


Section 9 and 7A provides that two doctors - the ones taking the sample and the one treating the accident vicim in hospital will have to agree to taking a specimen. The Webber case (1998) illustrates the problem. She was involved in an accident and refused a breath test.


At the hospital she agreed to a blood test under ss 7.1b and 9(1) - but was discharged before the specimen was taken. She was arrested and taken to a police station where a blood sample was taken and she was convicted. She appealed citing S9.1 and Divsional Court held tha obligation to provide a speciment was not discharged because of change of locus and went on to say that the procedure could not be altered by the mere fact that the defendant had left the hospital before complying with the requirement.

The restriction applies to preliminary and evidential tests Under 6(5) if the patient provides a psoitive reading or fails to provide speciment of breath they cannot be arrested whilst still a patient.

As said in lengthy post above - most of which appears on the exam papers for our new bloods...

s9 povides that RTC victim shall not be rquired to provide specimen whilst at hospital and the two independent doctors have been notified of proposal to take sample for analysis. In fact - the patient is not required to give permsission for a lab test.

In the case of the taxi driver - she would be like my cousin - the mad Doc's wife - Wildy . She would have to notify of the condition and very probably we would see the problem for ourselves . I would then ask if there was any reason why blood could not be taken. I would then have to find a police station where a doctor is available to take this test.


We are not that unreasonable.....

But there is reasonabl and unreasonable and I have included the ones which have been tested at the courts in above post

Interesting info there, it seems strange that one can't wait for legal advice or even read it but Hey! don't drink and drive.
I have a question though, I was stopped, apparently speeding, and was asked to supply a specimen of breath. A bit irritated because I hadn't been speeding either, I provided. The officer then wandered off with the test unit, only to return and inform me that the specimen had given an inconclusive result and I was required to provide another sample. I duly complied although I did notice that the tube was not changed
BUT. Was this correct/ alowable procedure?
I will point out that the second test was clear, I wasn't charged for speeding but did have to suffer the bleatings about road safety from someone who had already lost all credibility in my eyes.

@IG, thanks for the very comprehensive reply. Note that I definitely do not condone drink-driving. However, the law as claimed by that law-firm's site seemed to be somewhat unreasonable.

Now, it's all very well you or other persons in authority claiming that you would act in a reasonable manner. However, with speeding, the precedent has been set. Authority is seen to act unreasonably in the case of a technical offense that exists (or should exist) to expedite the bringing to task those who are guilty of a heinous act. However, speeding (a secondary offense originally there to deal with dangerous drivers) has now become the primary offense and used completely without reason or discretion. I have a nagging feeling that the offense of failing to provide a sample of breath is going the same way.

FWIW, I have a suspicion that my nagging feeling may be justified, particularly in light of your reply. You give reasons where the police may require a blood or urine sample, but nowhere do you give any indication that a subject who fails (as opposed to refuses) to provide a breath sample may provide blood or urine instead. I suspect that many would not be able to provide a breath sample who would not be aware of their incapacity until they failed (what lung capacity is required, and how long must the "blow" be sustained?) Such a person would not be able to declare a relevant medical condition to the officer at the time and so (AFAICT) would have no reasonable excuse under law. (Or have I misread and "I'm sorry officer, but I can't blow that hard/for as long you want" is sufficient?)

I'm also disturbed about some of the excuses (perhaps that should be reasons) you claim to be unreasonable. For example, inability to take sufficiently deep breaths because of a panic attack brought on by a custody officer's aggressive behaviour is unreasonable?

I find it disturbing that you have no right to know your rights, either by consultation with a legal professional or by having access to and time to understand the relevant parts of PACE 1984 (as ammended) and that you can be guilty of an offense merely because you wanted to know your rights before consenting to something that may result in your prosecution. I find this disturbing not so much because of the specific (admittedly time-sensitive) requirement for taking a sample, but because of implications for more-serious offenses. For example, if you detained me under suspicion of murder I'm damned sure that I'd want to know my rights before you proceed. After all, there have been rather a lot of high-profile cases recently where innocent people have spent large portions of their lives behind bars.

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Will

I know ... it is strange . But the Incorporation of Human Rights has not altered this position which was established in DPP v Billington 1988 RTR 231 or Campbell v DPP 2003. Divisonal Court reiterated this in Kennedy v DPPP 2003 where it was held that the public interest required that the obatianing of specimens should not be delayed in this way.

I do not make the laws... my lads and self, unfortunately, are required to apply and comply .... but we will use common sense - at least I do...

Driving under influences, uninusred and speeding come under mens culpa (abslolute offence) and not mens rea (gullty mind). The Mad Cats even get confused over that one




Suspect it was routine. I would normally change the tube if the first one proved faulty - but the road side test is the preliminary screening. Not used as evidence. It simply provides an indication as to whether the amount of alcohol in your blood is likely to exceed the prescribed limit. It does not prove it. It is admissible to prove veracity of the defendant though. If we fail to comply with the manufacturer's instructions (ie assembling the tube on the Lion Alcometer) (suspect this may have been case here ) or allowing the driver to smoke before the test) will mena the person has not provided a preliminary breath test and may be required to take another . This is the catch - to refuse to provide a second one is also an offence (I do not make these rules - but have to adhere to them )


The procedure does specify a policeman in uniform has to carry out the test - courts decided to interpret the Act that way.. Wording is obtuse - as always - but the courts decided the intent of the Act

As for the lecture on road safety .... we do that as routine Just sit and listen Nod politely

I tend to talk about COAST, POWER and some jokey anecdote to put person at ease. My lads are instructed to do likewise - but that is our patch's general procedure. Your profile says you are from dour S. Wales.... We compare our stats with them as well as Lancs as a similar Force and similar area..

Hi Will

Cannot pretend that law is not an ass. It is black and white - and does not give that much scope for the grey bits. But that is in everything - unless you happen to be a chav ,.... in which case the mags are adopt a pee-cce "wannabe seen as fair and just to these poor people who cannot help it" stance



Aye - the mens culpa thing......

Reasonable excuse has to be where the defendant is physically unable to provide a breath specimen of where to do so would entail significant risk to health (R v Lennard 1973 - set this precedent even though it precedes RTA 1988)

The breath sample has to be provided in such a way as to enable the test to be achieved per RTA 1988 s11(3)

Get this it even says "Simply producing enough breath to enable the device to give a positive reading does not necessarily mean defenadant has provided a specimen. The defendant has to provide sufficient breath to give a reliable reading. - positive or negative per Dpp v Heywood 1998 RTR 1).

In our patch we do try to ensure our "customers" are advised of their rights from word go - regardless of the rules per the manual. We do encourage them to give the right kind of puff into the Intoximeter




We usually find the gadget is within ability of most customers. We tell them what they are supposed to do and are encouraging....... Though I guess they do not see this as "helpful encouragement" as it is likely to land them in bother.

Admit - my young cousin (Mad Doc's wife - the luvvable WildCat) would have a problem with this herself. She has certificate showing she still has a limited lung capacity even over 14 years since that accident - and would produce it if in this situation. (My Dad and her mother are siblings.)

INormal procedure is to offer blood sample if breath sample is 50 microgrammes in 100 millilitres of breath - or is borderline. But we have obtain consent - and by giving consent the implicationis we can use it in court. However, if the sample cannot be used or the test on this proved faulty - we have to revert to the original intoximeter print out. This is calibrated and accurate - and thus the evidence we need. That is why the law is so black and white over the breath issue.

Know it seems absurd to you... but that is how it is - and we would rather target drink driving offences than speeding ones I can usually tell if driver is safe or impaired...... very early on - but had lot of practice ....and experience ...



Those are what the courts judged to be the case. These are the precedents which you would face and why you need a darned good lawyer if you are ever in such a situation.
We have a national pro-forma and - mecifully we do apply s 7 3 (a) whereby a blood or urine sample (usually hospital in case of accident) and only at a police station if we have reasonable cause to believe you cannot give a breath specimen for medical reasons. I would take a panic attack or some other visible evidence into account and always have done -and always will do.


The urine specimen has to be given within one hour of the requuirement being given and one hour after the first sample.

We have to warn that failure to pee may result in a prosecution

Gets better don't it ...

The blood thing came about because too many claimed a fear of needles when it came to the blood test as routine.

As a matter of fact - I still offer it - if I have a doctor of professionally qualified health care person available. (Otherwise - have to root around for one....) . But I must ask if there is any reason - medical or t otherwise why they would not wish one to be taken



Mentioned this in reply to tinytim above ..set in case law.... this is where you must have decent lawyer if you are ever in this fix.

We also have mens culpa as oppsoed to mens rea with this type of offence. You have been caught behind the wheel of car and gave reasonable suspicion that you were worse for wear for drink...

Whereas in a murder inquiry - we have to prove a guilty mind (malice aforethought} as well as deed. It is different area of law.....

If you know you have a medical condition which would prevent your being able to provide breath specimen - you must inform the arresting officer of this immediately. This sets in motion the alternative specimen requirement from blood and urine. Better still if you have something on your person which substantiates this claim.

As said earlier - we do use common sense and if it is obvious (ie gives reasonable cause) defendant has problem providing a breath specimen - then we will try to offer alternative.