If a police officer has reason to believe that a driver suspected of driving with excess alcohol has consumed alcohol within the previous 20 minutes, he must wait until 20 minutes has elapsed after the last drink before administering the breath test. If he does not know and has no reason to suppose such consumption, he need not wait the 20 minutes. The instructions for use are not part of the device as defined in the Act. The only relevance of non-compliance with any of the instructions for the use of the Alcotest including as to inflation, but not as to assembly, was that it might be evidence from which the mala fides of the constable could be inferred.
Lord Diplock considered the words of Melford Stevenson J below: ‘In my view, the words ‘carried out by means of a device of a type approved for the purpose of such a test’ involve by necessary implication the observance of the instructions which are printed as an integral part of the device issued for the purpose of taking the breath test.’ He observed that: ‘If it were correct that the instructions were an integral part of the device, it would no doubt follow that the breath test was not carried out by means of a device of the type approved by the Secretary of State and Scott v Baker would be in point. But, in my view, Melford Stevenson J’s statement involves a misconstruction of the Act.’
As to the significance of the manufacturer’s instructions: ‘The requirements of the Act are satisfied provided first, that the device used is of a type approved by the Secretary of State, and, secondly, that the test is conducted and its results are evaluated bona fide by the constable carrying out the test. He must accordingly comply with any instructions for the use of the device which to his knowledge in the circumstances in which the breath test is carried out need to be observed in order that the device may give a reliable indication whether or not the proportion of alcohol in the blood of the person to whom the test is administered exceeds the prescribed limit. If he does not, the test carried out by him is not a ‘breath test’ within the meaning of the Act because it is not carried out for the defined purpose. But provided that he acts bona fide in the conduct of the test and in the evaluation of its result, it matters not that it may subsequently be proved at the trial that the person to whom the test was administered that through inadvertence or ignorance of some relevant circumstances the instructions were not fully complied with.’
Judges:
Viscount Dilhorne, Lord Diplock
Citations:
[1970] AC 1072
Jurisdiction:
England and Wales
Cited by:
Cited – Grant v Director of Public Prosecutions Admn 22-Jan-2003
The appellant had been convicted of failing to give a breath test, and of driving with excess alcohol. He had falsely claimed that he had had a drink in the five minutes before being asked to take the test, and said the officer should not have . .
Cited – Scheiner v Director of Public Prosecutions Admn 13-Jun-2006
Appeal against conviction for driving with excess alcohol – officer having mobile phone with him and turned on contrary to manufacturer’s instructions.
Held: The appeal failed. ‘This appeal should, in my view, mark the end of arguments before . .
Lists of cited by and citing cases may be incomplete.
Road Traffic
Updated: 29 April 2022; Ref: scu.187055