The defendant appealed his conviction for driving with excess alcohol. He claimed to have a medical condition under which the contents of his stomach would regurgitate into his mouth, and that this could exaggerate the alcohol reading.
Held: ‘although at first sight Zafar may appear harsh, this has to be seen in context. Breath specimens do not provide a precise calculation of how much alcohol a person has consumed. Nor would several people, each having consumed the same amount of alcohol, all produce the same analytical result. There are numerous variables, including age, size, gender, metabolic rate and so on. Parliament has nevertheless prescribed a universal pragmatic test, falling well short of a total prohibition on driving with alcohol in the body. It has done so in the knowledge that different people will be able to consume the same quantities of alcohol with different physical and legal effects. There can be no principled objection to that. Moreover, a defendant who produces a positive specimen as analysed by the intoximeter has chosen to drive after consuming alcohol and will already have provided a positive roadside specimen of breath. At least twenty minutes will have elapsed between the last consumption of alcohol and the provision of the roadside test. Prosecution will only follow if the intoximeter yields two readings above the 35mcg limit (in practice, above 39mcg for a decision to prosecute) and, where the readings do not exceed 50 mcg, there is a statutory right to require an alternative specimen of blood or urine. For regurgitation or reflux to prejudice a defendant, it must have occurred twice (once before each specimen) and with substantially similar results. In addition, the present prescribed procedure requires the suspect to be asked twice (once before and once after the evidential breath test procedure) whether he has brought up anything from his stomach. The scope for real injustice is extremely slight and, where it arises, there remains the further possibility of mitigating the penalty. ‘ The defendant also appealed refusal to consider the circumstances to amount to sepcial reason for non-disqualification. The magistrates had ignored the facts as a defence, and had also disregarded the condition as a special reason. This was incorrect, and the case was remitted to te hmagistrates for resentencing.
Judges:
Lord Justice Kay Mr Justice Mitting
Citations:
[2006] EWHC 1497 (Admin)
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Zafar v Director of Public Prosecutions Admn 1-Nov-2004
The defendant appealed his conviction for failing a breath test. He said that since the meter could be affected by mouth alcohol, the prosecutor had a duty to show that the reading arose from a breath taken deep from the lung by a deep breath.
Cited – O’Sullivan v Director of Public Prosecutions Admn 25-Feb-2005
After routine procedures were followed at the police station, the police took a specimen of breath over two hours after those used for analysis to see if the defendant was then fit to leave. It showed a reading consistent with the analysis of the . .
Cited – Regina v Wickens 1958
The court set out the requirements to be met by a defendant on an argument that there existed special reasons for him not to be disqualified: (1) a special reason must be a mitigating or extenuating circumstance; (2) it must not amount in law to a . .
Cited – Regina v David Newton 1974
The Lord Chief Justice was unable to accept that someone with 127 milligrammes of alcohol in 100 millilitres of blood, a little over half the legal limit, did not feel any effect. The process of considering whether special reasons might avoid a . .
Lists of cited by and citing cases may be incomplete.
Road Traffic
Updated: 12 November 2022; Ref: scu.242701