The defendant driver had provided two specimens of breath at the police station. The device used failed to provide a printout and the constable operating it decided that it could be unreliable. He required the defendant to provide a specimen of blood, which the defendant did. The part-specimen of blood retained by the police was analysed but no evidence of the blood analysis was produced at the trial. No notice of analysis results was given to the defendant. The defendant appealed his conviction.
Held: The appeal succeeded. Once the constable decided that the device analysing breath was not reliable, any prosecution could be based only the subsequent blood analysis. However, Glidewell LJ said: ‘Secondly, . . the failure by the prosecution to give notice to the defendant of the results of the blood analysis, and to call evidence of the results of that analysis, is a breach of the requirement in Section 10(2) of the [predecessor] Act that ‘Evidence of the proportion of alcohol . . in a specimen of . . blood . . provided by the accused shall in all cases be taken into account.
It follows, therefore, that even if a prosecution for driving with excess alcohol in the breath could properly proceed in the circumstances of the present case (which I do not accept), it was still necessary for the results of the blood analysis to be put in evidence. The failure to do so, in my judgment, vitiated the prosecution case.’
Judges:
Glidewell LJ, McNeill J
Citations:
[1988] RTR 401
Jurisdiction:
England and Wales
Cited by:
Cited – Breckon v Director of Public Prosecutions Admn 22-Aug-2007
The defendant appealed against his conviction for driving with excess alcohol.
Held: There was no requirement that the prosecutor should produce the results of the roadside breath test in evidence, and the breathalyser was of the approved . .
Cited – Smith v Director of Public Prosecutions Admn 30-Jan-2007
The defendant appealed his conviction for driving with excess alcohol, arguing that the prosecution had failed to provide the roadside breath test figures.
Held: The appeal failed, and was indeed hopeless. Pill LJ said: ‘The specimens of . .
Cited – Murphy v Director of Public Prosecutions Admn 20-Jun-2006
The court rejected the defendant’s argument that the prosecutor should have put in evidence the results of the roadside breath test. Mitting J referred to the case of Badkin: ‘But nothing in the judgment of Glidewell LJ leads to the conclusion that . .
Lists of cited by and citing cases may be incomplete.
Road Traffic
Updated: 06 December 2022; Ref: scu.259150