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 type. The appeal failed.
Reliance had been placed on the fact that the guide to type approval relating to the device provided that the gas delivery system should comprise an automatic change over valve, whereas the device in question had a manual change over valve. Nelson J said there was no reference in the schedule to the approval to the guide, and he could not see no reason that it had been incorporated within the approval. The definition of the device stood by itself in the schedule of the approval and did not admit a further identification or specification: ‘[If] for example the Intoximeter EC/IR had no gas delivery system or had significantly different software version it would not be an approved device under the Schedule of the Approval. But there must be room to make sensible modifications without having to seek a new approval every time this is done. The test must be whether the description in the schedule still properly applies. If it does not, then the device is no longer an approved device; but if the description does still properly apply to the device it will remain an approved device even though modifications or alterations have been made. Thus the removal of one cylinder, which did not affect the operation of the device, did not take it out of the Approval. Nor in my judgment, would the supply of a device with a manual change-over valve, rather than an automatic change-over valve when the machine had two cylinders, render it no longer an approved device. It remained an Intoximeter EC/IR with a gas deliver system.’
Judges:
Sedley LJ, Nelson J
Citations:
[2007] EWHC 2013 (Admin), [2005] RTR 8
Links:
Statutes:
Road Traffic Act 1988 5(1)(a), Road Traffic Offenders Act 1988 15(2)
Citing:
Cited – Rayner v Hampshire Chief Constable 1971
A breathalyser bag with a hole in it was not equipment which comprised a device of a type approved by the Secretary of State. . .
Cited – Badkin v Director of Public Prosecutions 1988
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 . .
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 – Parish v Director of Public Prosecutions (Orse Parrish v Director of Public Prosecutions) QBD 1-Nov-1999
The defendant motorist was accused of driving with excess alcohol. There had been a difference in readings between two samples taken within a short time of each other.
Held: He should have been allowed an adjournment to bring his own expert . .
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 . .
Cited – O’Sullivan v Director of Public Prosecutions 27-Mar-2000
Where a motorist challenges the accuracy of the intoximeter, there is only an evidential burden on him. . .
Cited – Kemsley v Director of Public Prosecutions Admn 4-Feb-2004
The defendant appealed a conviction for driving with excess alcohol. She said she had not first been cautioned when interviewed after an accident and that her admission that she had been driving should not have been allowed in evidence.
Held: . .
Cited – Regina v Cooksley CA 2003
. .
Cited by:
Cited – Coxon v Manchester City Magistrates Court Admn 11-Mar-2010
The defendant sought judicial review of the magistrate’s refusal to state a case for an appeal against his conviction for driving with excess alcohol, saying that the intoximeter used had not received type approval as required. The defendant’s . .
Lists of cited by and citing cases may be incomplete.
Road Traffic
Updated: 11 July 2022; Ref: scu.258859