MCNEIL v DPP

MCNEIL v DPP
Last updated: 7:15 PM BST 07/05/2008
Divisional Court

Latham LJ, Underhill J

April 28, 2008

Blood samples – Breath samples – Breath tests – Driving while over the limit – Police powers and duties – Effect of reflux or regurgitation on breath test – Validity of police guidance – Road Traffic Act 1988 – s. 7(3)(bb) Road Traffic Act 1988

FACTS

The appellant motorist (M) appealed by way of case stated against the decision of a magistrates’ court to convict him of driving over the alcohol limit. M had failed a roadside breath test and had been required to produce a specimen of breath at a police station in relation to an offence of driving over the alcohol limit. At the police station a pro forma document, namely MGDD/A (Station Procedure), was used with a view to administering an intoximeter breath test. M provided two breath specimens but indicated that he had burped in the course of providing the second specimen. That indication was in response to a question, namely question A17 prescribed by the form, as to whether he had brought up anything from his stomach since he had started to use the intoximeter. A note to the question stated that if a police officer received a positive answer to that question there was reasonable cause to believe that the instrument used had not produced a reliable indication and directed the police officer to require a specimen of blood or urine. The officer followed that direction and required M to provide a specimen of blood. M was convicted of driving over the limit on the basis of the analysis of a specimen of blood that he provided. M contended that as it was settled law that a specimen of breath that had been affected or potentially affected by reflux or regurgitation from the stomach was to be treated as a specimen of breath for the purposes of the Road Traffic Act 1988, an indication obtained from an intoximeter in such circumstances could not be regarded as unreliable for the purposes of s. 7(3)(bb) of the Act so as to entitle a police officer to require a specimen of blood.

ISSUE

Whether the police officer had not been entitled to require M to provide a specimen of blood.

HELD (appeal allowed)

Although no blame attached to the police officer for following the procedure prescribed by the pro forma document, the fact remained that the cause that he thought he had had, namely that the breath specimen tested by the intoximeter had not given a reliable indication of the amount of alcohol in R’s breath was not, in law, capable of rendering that indication unreliable, Zafar v DPP [2004] EWHC 2468 (Admin), [2005] 169 JP 208 and Woolfe v DPP [2006] EWHC 1497 (Admin), [2007] RTR 16 applied. It followed that the police officer had not been entitled to require M to provide a specimen of blood, and, accordingly, M’s conviction was quashed.

Nigel Ley (instructed by Byrne Frodsham, Widnes) for the appellant. Andrew Clarke (instructed by Crown Prosecution Service) for the respondent.