It is my understanding that two consecutive breath samples should each give a credible result. As the second sample resulted in "mouth alcohol" that is not a credible result. As a result of this the offender should have been invited to provide blood or urine. I have no knowledge of an option to provide another breath sample. If legally further breath samples are admissable, should there not have been two further consecutive samples,not just one?
Do you mean that if the Camic reading is below a specific figure then it is concluded to be mouth alcohol?
Does that mean that the second breath sample was invalid?
If that is the case should the Camic results not have been designated as "unreliable" and the offender invited to supply only blood or urine as it is my understanding that there is not option in law to include an invitation to provide another breath sample?
There was definitely no alcohol consumed within 20 mins. prior to the roadside breath test or between the roadside breath test and the police station Camic procedure.
Hence my belief that as there was a significant difference between the first two samples the results should be concluded to be were inconclusive or unreliable and hence are not admisable as an evidential breath test,.
I understand that the police invite the offender to provide blood or urine and point out the consequences of refusal and that the offender cannot demand to provide such samples.
I do not understand whether the police legally have an option to require a third breath test.
It is my understanding that the the offender was advised that as providing a blood sample would entail a wait for the attendance of a doctor it would be simpler to provide a third breath test.
There was not blood or urine sample given.
It is my understanding that the offender was advised that as giving blood or urine would entail a wait of some time he was being invited to provide a third breath sample.
The only evidence the police have is the breath test results on the Camic print outs. No blood or urine results.
Yes. My first thought was that there may be a "procedural issue" but "might be" is not a very strong belief to take to court.
That is why I asked the original question.
I'm not satisfied that we have resolved this matter but it is too late tonight to continue. I will return to it tomorrow evening if that is possible.
I am attempting to establish whether the breath test procedure as carried out at the police station as I have described it is admissable as evidence.
There was no blood or urine sample given hence the only evidence is the breath test results.
The reason I believe that the breath test results were unreliable is because the second breath test result appears to have been significantly different from the first. If the officer" has reasonable cause to believe that the device has not produced a reliable indication of the proportion of alcohol in the breath" then the offender should have been invited to provide blood or urine. I cannot find any reference to there being an option to invite the offender to provide a third breath sample.
The offender is considering a Not Guilty plea on the grounds that the police station procedure was not followed and hence the breath test results are not admissable as evidence.
Would you please advise me of the considered opinion of one of your Road Traffic Law colleagues as to the possibility of this defence being successful?
The invitation to provide a third specimen and the reason for requesting it is the crux of my argument.
I thought that as the offender was invited to provide a third sample when there is no option to require a third sample then the correct procedure had not been followed and that rendered what had gone before inadmissable hence no evidence hence no case to answer.
Thank you. We will give this matter further due consideration.
Since posing this question I have had sight of the Camic device print outs and taken other advice. The Camic print out does show "mouth alcohol" as the second breath test and I am advised that this is a safety procedure programmed into the device to cater for the possibility of "burping" or regurgitation into the mouth and hence causing a false result. Under these circumstances a third breath sample may be taken and the lower of the first and third samples is the evidence. As previously stated the Camic manufacturer has advised that the "mouth alcohol" result does not in any way cast doubt on the accuracy of the third sample result. It follows from this that the "unreliable indication" from the device under s.7.3 is not applicable nor is s.8.2 as neither of the two evidential samples were less than 50 mgms.
I think that I have exhausted the matter but unfortunately not in the way I would have wished.
Thank you for your attention.