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Jo C.
Jo C., Barrister
Category: Law
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Experience:  Over 5 years in practice
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My brother had a alcohol breath test which showed 45mg for

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My brother had a alcohol breath test which showed 45mg for both samples. I'm I right in thinking that as he was not over 50mg the police officer should have offered an alternative blood or urine test to be done?
JA: Have any charges been filed? If so, when is the next court date?
Customer: yes, 11 June
JA: Where did this occur?
Customer: Preston
JA: Anything else you want the Lawyer to know before I connect you?
Customer: He also told me that he was having difficulties providing the second test as he has lung issues and asthma. It was only on the second test that the officer provoding the statutory warning. Is this correct procedure? Thanks

Hi, welcome to JustAnswer. My name is*****’m a barrister with 12 years of experience and I am happy to help with your question today.

Customer: replied 1 year ago.
Thank you
Customer: replied 1 year ago.
Would it be ok if you answered by questions and then if I have any follow up ones I could set up a call?

Yes, no problem.

Can you give me some time to look this up? I know the law has changed on this point but I need to find it.

You don't need to sit on line and wait. You will get an email when I respond.

Customer: replied 1 year ago.
no problem. Thank you
Customer: replied 1 year ago.
I think it's SCHEDULE 11 Enforcement of Transport Legislation, Section 52

Thank you.

I'm sorry for the delay. It took me ages to find this.

I know that they are not doing this now.

I think they say the reason for that is that the breathalyser has become more reliable.

In any event, they should turn to a specimen of blood if the breathalyser is considered unreliable. You can find that at S7 (2) onwards

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

The biggest factor that renders these devices unreliable is mouth alcohol.

In any event, the short answer is that it does not, per se, render the prosecution void but it does open up the challenges available to him that they have not done this.

Can I clarify anything for you?

Jo

Customer: replied 1 year ago.
Thank you Jo. This is what I was concerned about. He does have lung issues and asthma and it was my understanding that this may render the results unreliable as he would have to breath 'harder' as it were and therefore, the concentration of alcohol would be higher. In terms of the s7(7) statutory warning - 7) 'A constable must, on requiring any person to provide a specimen in pursuance of this section, warn him that a failure to provide it may render him liable to prosecution.'
As the officer has only provided this requirement on the second attempt (as my brother struggled) could this be raised as a breach?
Customer: replied 1 year ago.
Sorry - just to clarify the officer only provided the warning - not requirement
Customer: replied 1 year ago.
Could the first sample be considered to have been obtained unlawfully as the s7 warning was not given? This would then open up procedural breaches

The breathalyser tries to measure the amount of lung alcohol.

That is a breach but it only really goes to the issue of failing to provide.

It doesn't render the entire findings unlawful I'm afraid.

You can always try to exclude it under section 78 of the police and criminal Evidence Act but that is hard test

Customer: replied 1 year ago.
Oh I see. I read a case Murray (Gary) v DPP whereby the High Court held that the results of a breath, blood or urine test obtained in accordance with s 7 will only be admissible if the procedure is fully and properly complied with and that the court has no power to overlook a failure to follow the procedure set out by Parliament. Therefore, if the police fail to give a suspected drink driver the statutory warning they will not be permitted to rely upon the results of that test no matter what the result of the test turns out to be.
Is this no longer good law?
Customer: replied 1 year ago.
He would just be looking at rendering the first sample of breath inadmissible therefore, the evidence would not be compliant with the legislation as 2 samples are required under s7(1)a

I will just check actually if you are happy to wait.

Customer: replied 1 year ago.
Thanks

I thought this was right. They have to follow this procedure

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/666034/MGDD_A_Ver_8.5_Nov_2017.pdf

But failure is not invalid unless is renders the findings unreliable - DPP v Coulter.

The warning is statutory under 7.7 but that goes to the consequences of failure.

Re Murray, it was considered in a case called Twigg and decided that it was not authority for the proposition that any breach of S7 RTA means that the specimen is automatically inadmissible.

I wil try to upload the section of Archbold.

Customer: replied 1 year ago.
Right I see, thank you

It wont let me upload to this page. I don't know why.

I will see if customer services can send it on to you.

Customer: replied 1 year ago.
Oh dear, thank you. Would you advise on anything we could put forward to support his case? he is a HGV driver so if convicted he would lose his job. He last had a drink at about 6pm and then decided to drive (studiply) after a bit of a dispute with his partner.

Right, the Traffic Commissioner might revoke anyway.

Yes, it is always possible to challenge the reliability of the device. It depends how much he wants to spend on this but I suppose his livelihood is at risk.

Customer: replied 1 year ago.
Sorry he decided to drive at around 10pm
Customer: replied 1 year ago.
Why might the Traffic Commissioner revoke?
Customer: replied 1 year ago.
I think he is willing to spend as long as he has a case

Like the DVLA, they can revoke even on mere suspicion although probably would need more that the mere allegation.

As to him having a case, anybody can challenge anything. I have to be honest with you and tell you he is quite unlikely to succeed but I suppose he just wants an opportunity.

Customer: replied 1 year ago.
Ok thank you

I asked customer services to forward the section from Archbold on.

Customer: replied 1 year ago.
Lovely thanks

No problem.

All the best.

Please remember to rate my answer.

Remember that I am always available to help with your questions. Even if I am in Court I will usually pick up a question within 12 hours. For future information, please start your question with ‘For Jo C’. You can also bookmark my profile http://www.justanswer.co.uk/law/expert-remus2004/

File

The section is attached. We worked it out

Customer: replied 1 year ago.
Thank you Jo

No problem.

All the best. Shout if you want any of the cases.

Please remember to rate my answer.

Remember that I am always available to help with your questions. Even if I am in Court I will usually pick up a question within 12 hours. For future information, please start your question with ‘For Jo C’. You can also bookmark my profile http://www.justanswer.co.uk/law/expert-remus2004/

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