The Service appealed by case stated against the dismissal of a charge of driving with excess alcohol. The arresting officer had not administered the roadside breath test not having one with him, and had not been trained to make the necessary assessment. The driver had said that the arrest without the test was unlawful.
Held: The appeal succeeded, and the acquittal quashed.
Laws LJ said: ‘The District Judge has not considered the critical section 78 question, namely, whether admission of the evidence in issue would have such an adverse effect on the fairness of the proceedings that it should not be admitted. Instead, he has delivered what I fear I can only call a rhetorical plea for, ‘the right of a motorist not to be arrested due to lack of training or resources of police officers’. In fact, for my part, I am unable to see how the unlawfulness of the arrest, constituted by the want of any preliminary road side test, occasioned the least unfairness to the defendant. Given the readings at the police station it is surely inconceivable that a breath test at the scene would have been favourable to the defendant. And whatever the result of a road side test, the officer would still have been entitled to arrest the defendant if he had reasonable cause to suspect that he had committed a section 4 offence.’
Laws LJ, Ouseley J
[2009] EWHC (Admin) 3467
Bailii
Road Traffic Act 1988 5, Policae and Criminal Evidence Act 1984 78
England and Wales
Citing:
Cited – Fox v Chief Constable of Gwent HL 1986
The driver left an accident. The police entered his home unlawfully, and on his refusal to supply a breath test, he was arrested and charged with faiing to supply.
Held: A lawful arrest is not an essential requirement before a breath test, and . .
Lists of cited by and citing cases may be incomplete.
Road Traffic
Updated: 01 November 2021; Ref: scu.396503