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Jo C.
Jo C., Barrister
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Enquiring on behalf of a third party so not sure of exactly

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Enquiring on behalf of a third party so not sure of exactly what the procedure was at police station but understand it to be as follows: First breath sample on Camic = 54 mgms. Second sample = "mouth alcohol". Offender invited to provide blood or urine or a further breath sample. He elected to give further breath sample which = 54mgms again. Subsequently charged & bailed to court. It is my understanding that the first Camic test was invalid due to the second reading and the second Camic test was invalid as only one reading was obtained and to the best of my knowledge the Camic was not re-calibrated between the first set of samples and the third. Information from Camic is that the fact that a "mouth alcohol" result was obtained within the first test does not cast doubt on the accuracy of the third test. Under these circumstances is the Camic procedure admisable as evidence?
Submitted: 2 years ago.
Category: Law
Expert:  Jo C. replied 2 years ago.
Hi.

Thank you for your question. My name is XXXXX XXXXX I will try to help with this.

Sorry but what is invalid about this?

Also, how could the second sample have been affected by mouth alcohol when the first was not?

The calibration is a non issue here.
Customer: replied 2 years ago.

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?

Expert:  Jo C. replied 2 years ago.

There is no result of 'mouth alcohol'.

You blow a number. The machine does conclude mouth alcohol.
Customer: replied 2 years ago.

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?

Expert:  Jo C. replied 2 years ago.
No.

A breath test just produces a numerical result.

The way mouth alcohol is guarded against is that one of the specific questions during the test is whether you have consumed alcohol in the last 20 mins. Usually the answer is no but if the answer is yes the police wait another 20 mins.

I cannot immediately see how the second test could have been affected by mouth alcohol but not the first unless a person within the vision of the police literally drank neat alcohol.

In any event though, they will be relying on the blood test which cannot be affected by mouth alcohol.

There is an option to offer either blood or urine. The police do it all the time. The suspect cannot demand a blood or urine test.

Jo
Customer: replied 2 years ago.

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.

Expert:  Jo C. replied 2 years ago.
No, there wouldn't be. Its not possible generally because of the time of arrest.

I'm afraid I don't see the difference between the two renders then unreliable but, in any event, they are relying on the blood specimen so it matters not.
Customer: replied 2 years ago.

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.

Expert:  Jo C. replied 2 years ago.
In that case they are free to rely on them.

Im really sorry but I don't see the mouth alcohol issue? I'm not sure what exactly you think renders this test unreliable?
Expert:  Jo C. replied 2 years ago.
In fairness, it might be that there is a procedural issue but it cannot be mouth alcohol?
Customer: replied 2 years ago.

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.

Expert:  Jo C. replied 2 years ago.
Procedural issues tend to be more relevant to failing to provide than drink driving.

Obviously I haven't had full vision of the evidence in this case so I cannot tell you what alternative options you have but I can say its not likely to be mouth alcohol on the points you've raised above.
Customer: replied 2 years ago.

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?


Expert:  Jo C. replied 2 years ago.
I am really sorry if I'm missing the point but I still don't see what the procedural issue here is?

They do not have to offer the blood or urine test.

There is no power to take a third specimen but they are not relying on that here anyway. If you are saying they did demand a further specimen then that would not be something to which they were lawfully entitled but it doesnt render the earlier findings inadmissible.

Whether it is unrealiable or not is a matter for expert evidence but a different reading does not go to proecudure.

I do understand that you are considering a not guilty plea but you are going to need to tell me what the procedural error is if you want me to tell you whether its likely to succeed? At the moment, I cannot see a procedural error at all except possibly a demand for a third specimen.
Customer: replied 2 years ago.

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.


 


 

Expert:  Jo C. replied 2 years ago.
They are not entitled to demand a third specimen.

The requirements are in S7 here

http://www.legislation.gov.uk/ukpga/1988/52/section/7

and it says two specimens or a specimen of blood or urine.

Usually its offered to the defendant to consent to a blood or urine sample because its in his interests but there is no power to require that.

If they demanded a third sample then that would be unlawful.

I'm afraid I cannot agree that renders the earlier samples inadmissible though.
Jo C., Barrister
Category: Law
Satisfied Customers: 69525
Experience: Over 5 years in practice
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Customer: replied 2 years ago.

Thank you. We will give this matter further due consideration.

Expert:  Jo C. replied 2 years ago.
Ok.

All the best.
Customer: replied 2 years ago.

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.


 

Expert:  Jo C. replied 2 years ago.
Ok. Good luck.

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