The defendant appealed against his conviction for driving with excess alcohol, saying that the device used to make the measurement did not have type approval.
Held: The appeal failed. Stanley Burnton J considered the issue of type approval of a breath analysis device and said that a device may not be an approved device because it never complied with the description of the device contained in the approval order. Alterations may have been made to it during the course of time as to take it out of the description in the schedule to the order. It would seem that a device which did not include the intoximeter EC/IR gas delivery system, by way of example, or a software version which was not a UK 5.23, but some significantly different version, would not be an approved device. However: ‘It does not follow that from every modification to an Intoximeter takes it out of approval, far from it. The alteration must be such in my judgment that the description in the schedule of the order no longer applies to it.’
If the only contention was that the modifications to the Intoximeter device had been such that it was no longer in the same condition as it had been when the Secretary of State’s approval was given that could not amount to the defence. It had to be shown that the modifications were such that it was no longer an approved device.
Judges:
Stanley Burnton J
Citations:
[2003] EWHC 359 (Admin)
Links:
Statutes:
Jurisdiction:
England and Wales
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: 26 November 2022; Ref: scu.185000