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Alice H
Alice H, Solicitor/Partner
Category: Law
Satisfied Customers: 2849
Experience:  Partner in national law firm
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i had a lung operation and suffered pain with breathing into

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i had a lung operation and suffered pain with breathing into breath test machine at police station. At the road side I was not given a reading and told that I fail the breath test on breathing and was arrested. i show the officer my operation scar on my back when challenged that I was not breathing hard enough and also inform him of my stress and pain. I was warned that I would be liable for prosecution if I fail to supply. Under duress and pain I managed to give sample , which register a 62 reading. is this proper conduct by the officer , should I not have been offer a blood test .Does the end justify the means? Could the threat , pain suffered in the process be use as a defence ? I was informed that a defence exists in the evidence of Whites v DPP or Davies v DPP case law. Please advised
Submitted: 3 years ago.
Category: Law
Expert:  Alice H replied 3 years ago.
Hello there - I have already answered your question in the original thread. Please review the answer given.
Customer: replied 3 years ago.

Hi Alex


Thanks for reply


 


I was looking for legal advise base on the particulars raised , in addition to the mentioned case law information required. Have you no advise to give on the matters raised , in respect of Defence grounds or any other specific related case law that could apply ? I note that not all the mentioned info that I required is not readily available. Thanking you for info sent and that you will be able to retrieve remainder on Tuesday .My Court case is on Wednesday and urgently need info now , Tuesday is cutting it thin. Please advised


 

Expert:  Alice H replied 3 years ago.
No problem. I will consider some of the issues raised tonight and see if I can help further. In respect of the other Q&A please do remember to rate the answers. In the meantime I will review the matter further.
Customer: replied 3 years ago.

Hi Alex


Thanks for reply .


I would be extremely grateful to receive the required review & help as promised and very happy to reward you with the most excellent ratings possible . Thanking you most kindly in advance for your diligence

Expert:  Alice H replied 3 years ago.
Hi - you have left negative ratings but have asked for additional help which is inconsistent. In the circumstances I am umable to assist further and will have to opt out.
Customer: replied 3 years ago.

Hi


 


Sorry you feel this way . I was not entirely happy with the given answer, and thought that was it. However on following up with you , you indicated further assistance and I was most happy and grateful . I noted you reply to address the ratings , which , I have upgrade to excellent and reply to you . Did you not get my reply and the up grade ratings . I apologise for any misunderstanding on my behalf . I do require the promised help and it was not my intention to cause any offence

Expert:  Alice H replied 3 years ago.
Please rest assured that I am not offended.

We have a policy to opt out of questions where a customer does not appear satisfied so that another expert can step in.

But I have noticed that you rated my service as excellent which enables me to review your problem and come back to you with a full answer.
Expert:  Alice H replied 3 years ago.
Can I just confirm that despite the pain you were able to blow and give a reading of 62?

Customer: replied 3 years ago.

Thank you


 


Confirmed that despite the pain I did blow and gave the 62 reading


 

Expert:  Alice H replied 3 years ago.
I have reviewed the case of Davies v DPP and some commentary that I found on the case of White v DPP - both cases concern medical reasons for FAILING to supply a specimen of breath. You can read Davies in the answer that I gave earlier.

The distinction between their cases and yours, is that in your case you GAVE a breath sample which exceeded the legal limit of 35. Had you failed to give a sample or refused to do so on medical grounds then you could have relied on White and Davies, but since you gave a breath sample, you cannot.

I'm not sure what led you to White and Davies but on my analysis they do not appear to help ypur situation. Your case is essentially one of duress - but it is not duress unfortunately when a police officer warns you, as he is obliged to do, that failing to give a breath sample is an offence.

The option for blood or urine rests with the police not the suspect. Further blood and urine are for situations where (2) the breath readings between 40 and 50 (2) the breathalyser is not available or malfunctioning (3) there is a medical reason not to give a breath sample. However, blood or urine will not be offered where a breath sample has been given and provides a reading over 60.

In any event, the court will find the duress argument unattractive when the police clearly had grounds to require a breath sample and their suspicions were well founded when a positive test well over the limit was given. Sadly the fact that you have a medical problem will not provide you with a defence.

I am sorry to be so blunt about your situation but you have paid for an honest and objective answer from a qualified solicitor. I have dealt with numerous drink drive cases in over 20 years and have to give you an impartial opinion of your situation.

Despite all of the above I am happy to discuss further if needed.

Alex

Alice H, Solicitor/Partner
Category: Law
Satisfied Customers: 2849
Experience: Partner in national law firm
Alice H and other Law Specialists are ready to help you
Customer: replied 3 years ago.

Hi Alex


 


Thanks for review which was required to inform my best defence options , according to my given circumstance. It would appear that the general principles of using 'Duress ' would be disregarded as it is the officer choice , whether to deviate from standard breath testing and on medical information given to offer alternative Blood or Urine testing . That the individual has no right to this choice of testing , only if the breath testing is comply to in the first instances and the reading is below a 50 readings. In your , experience over the years , is a there a code that the practice of care to individuals should be taken in consideration in the gathering of evidence. That unnecessary pain and duress should not be inflicted in gathering go evidence. Otherwise the gathered evidence would be inadmissible . Would welcome your insights


 


 

Expert:  Alice H replied 3 years ago.

Were you seen by a doctor at any time during your detention at the police station?

Expert:  Alice H replied 3 years ago.
Just to help me:

Were you seen by a doctor at the police station?

Do you have some medical evidence about your condition and confirmation that you were in pain at the time of the breath test?

Do you have a copy of the drink drive booklet (form MGDD/A).

Also have you requested the CCTV recording of the custody suite which will confirm any complaints and/or pain you were in at the time?
Customer: replied 3 years ago.

not seen by a doctor at police station


No medical information , but pulled up my shirt to show operation scar to back up statement made to officer


no drink drive booklet ( form MGDD/A) given


 


CCTV recording will be requested to confirm making statement and the pulling up of shirt showing the police officer the scar from my lung operation. I have ongoing breathing issues and out patient hospital appointments related to lung disease.


 


 

Expert:  Alice H replied 3 years ago.
OK. I'm unclear as to how you wiLl prove your case without medical evidence?!
Customer: replied 3 years ago.

I have medical records of my lungs collasping twice , being hospitalised and having a lung operation . More recently over a year a go I had ambulance took me from home to hospital due to chest and breathing pain problems.


 


I am recieving on ngoing Out Paitient Hospital test and appointment for breathing and other related health issues. My doctor's medical record and hospital appointments is my source evidence. I have records of the Hospital appointments attended , and other programme schedule appointment . My next shedule hospital appointment is on Thursday 24th April


 

Expert:  Alice H replied 3 years ago.
OK.

The hearing on Wednesday - is that for trial?
Customer: replied 3 years ago.

 


Yes


My court case is Wednesday . That is the date given on release from the police station to attend court .

Expert:  Alice H replied 3 years ago.
OK.

Wednesday will not be for trial. If this is the first hearing then the court will simply take a plea.

You have to decide how you wish to proceed.

Option 1:

If you plead guilty then you will be disqualified for a minimum of 12 months (but this coukd be rediced by 25 % to 9 months if you complete the drink drivers rehabilitation course). There will also be a fine and costs to pay.

Option 2:

If you plead not guilty the case will be adjourned to a new date for trial. This will give you and prosecution time to prepare the case. In your defence you will need to obtain medical evidence of your lung problems etc. You should also request the police station CCTV recording of the drink drive procedure to examine the level of pressure exerted by the police officer.

I have looked at some drink drive case law but cannot find any authority that will help you in respect of 'duress' by a policd officer to provide a breath test. I suspect the court's would be reluctant to accept this as a defence because part of the procedure involves telling a suspect that failure to provide a sample is an offence.

I suggest you give your position some thought between now and Wednesday. You have the right to plead not guilty and contest the matter at trial; the down side is that if you lose, you stand to lose financially in fine and costs.

I hope this helps.

Alex




Customer: replied 3 years ago.

Thank you .


 


The general impression appears that a technical defence based on in the breath reading registered at 62 , would seem unsound ,.n overriding That to a lesser level the pain suffered and due medical grounds appears casual and an overriding consideration for the officer to apply . He did not deviate from routine practice in issuing warning s to comply , regardless of , to breath specimens , as a requirement of his duty to apprehend justify his objectivity. Begs the question , in what situation would it have been , objective or appropriate for for a doctor to be consulted ? and would this be once a person is charged with failing to produce ? Has there been any successful change on the medical grounds of 'Duress ' when a person has taken a breath test and the reading is over.


 


 

Expert:  Alice H replied 3 years ago.
A doctor would have been called when there was a concern about your health. This could have been before or after the breath testing.

As I said earlier duress is not a defence available to you. Duress in criminal law is pressure to commit a crime. The police officer was investigating a crime and, although there seems to be an element of pressure, it was for the purpose of obtaining a breath sample which you were able to give.

The bottom line remians that, regardless of how the breath test was obtained, you were able to give a sample which showed that you were very much over the drink drive limit.

It's really not going to be attractive to appear at court and try and defend a case on a technicality when there is evidence that you had consumed alcohol and driven a motorvehicle.

I hate to sound negative but I can see similar questions being raised by the court when you appear on Wednesday.

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