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.
Held: Though the intoximeter made a distinction between deep lung breath and mouth breath, the Act did not. The word ‘breath’ had to be taken to have its dictionary meaning, which was ‘air exhaled from any thing’. The approval of the intoximeter could not be used as an aid to interpretation of the statute. Silber J said: ‘I conclude that there is nothing in the Road Traffic Act or in the Road Traffic Offenders Act which suggests that the word ‘breath’ should have a special meaning or that the dictionary definition of ‘breath’ should not apply. It is noteworthy that the statutory provision refers to ‘breath’ and not to ‘deep lung air’. What [counsel] is seeking to persuade us to do is to rewrite the statutory provision and that is not correct.’ The definition of ‘breath’ in section 5 of the Road Traffic Act included all of that which is exhaled and not just deep lung air.


Silber J, Gibbs J


Times 07-Jan-2005, [2004] EWHC 2468 (Admin)


Bailii, Bailii


Road Traffic Act 1988 5(1)(a)


England and Wales

Cited by:

CitedO’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 . .
CitedWoolfe v Director of Public Prosecutions Admn 23-Jun-2006
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: . .
CitedSmith 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 . .
CitedRose v Director of Public Prosecutions Admn 11-Mar-2010
The defendant appealed by case stated his conviction of driving with excess alcohol. He said that the device used was not an approved one. He also said that the reading was invaid in including a reading of mouth alcohol. . .
Lists of cited by and citing cases may be incomplete.

Road Traffic

Updated: 23 June 2022; Ref: scu.220540