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attempting to drive, and (2) that the motorist had never
been formally arrested before undergoing the breath test,
and that it was the duty of the police to arrest in such
a case.—
Campbell v. Tormey—
Q.B. Divisional Court
Lord Parker, Ashworth and Willis J.J.—(1969) I A.E.R.
961.
4—It is wiser for the Judge to hold a preliminary
inquiry during the trial in the absence of the jury on the
question whether the proper warning was given, and if
not, whether prejudice has resulted.—
R. v. Brush
—C.A.
(Salmon, Geoffrey Lane and Fisher (J.J.) 1968) 3 A.E.R.
467-
5—A specimen of blood
is
to be supplied to an
accused within a reasonable time, preferably before he
leaves the police station.—
R. v. Sharp
(C.A. Widgery
Fenton, Atkinson and Bridge L.J.J.) (1968) 3 A.E.R. 182.
6—Policeman follows car of motorist, because one of
the rear lamps was defective; when questioning motorist,
he smells drink, makes him take a breath test that proves
positive; the policeman drives him to the station, and
makes him undergo a blood test. The motorist is even
tually convicted, fined £25 and disqualified for 12 months.
It was held that the motorist had already committed an
offence as regards the defective rear lamp before under
going the breath
test. Furthermore the phrase " any
person driving" applied generally to the driver of a
vehicle, whether the vehicle was in motion or stationary,
and included someone who had got out of the driving
seat temporarily.—
R. v. Price
C.A. (Lord Parker, Winn
and Ashworth J.J.)—(1968) 3 A.E.R. 814.
7—Motorist leaves his car in hotel park at 6 p.m. and
takes drinks without having had a meal for 24 hours
until 9.10 p.m. when he was completely drunk. He
staggers, and endeavours to reach his own car but is so
drunk that he endeavours to open another car. A police
man sees him staggering, takes a positive breath test,
arrests him, drives him to the police station, where a
blood test
is
taken. A negative breath
test is taken
much later, at 3 a.m. the next morning. When charged
the magistrates dismiss the case, on the ground that the
motorist was so drunk that he could not have driven.
On an appeal by the police, it was held that the case
should be remitted to the magistrates with a direction to
convict, because the motorist had to prove beyond doubt
that there was no likelihood of his driving the car as long
as there was any probability of his having alcohol in the
blood in a proportion exceediny the present limit.—
Northfield v. Finder
—Q.B. Divisional Court (Lord Parker,
Ashworth and Willis J.J.—(1968) 3 A.E.R. 854.
8—A motor car was stopped by the police for exceeding
the speed limit. The motorist smelt of alcohol, aid was
requested to undergo a breath test which proved positive.
He was arrested and taken to the police station, and asked
to undergo a blood test which was also positive. When
charged, the justice upheld a submission that there had
been no proof that the device used by the policeman was
of a type which had the approval of the Minister. This
contention was sustained on appeal on the ground that
the offence charged could not be established unless it
was shown that the specimen had been provided in
accordance with statute. Before undergoing a blood test,
apart from the breath test on
the road, the motorist
should be required to undergo a second breath test in
the police station, and this breath test must be carried out
by means of a device of a type approved by the Minister.
It was not sufficient to prove that a breath test device
had been issued to
the police.—
Scott v. Baker
_J.B.
Divisional Court. (Lord Parker, Waller and Fisher J.J 1—
(1968) 2 A.E.R. 993.
J J ;
9—Accused charged with failing to supply specimen
for laboratory test without reasonable excuse. Jury should
be warned that they cannot convict if a reasonable excuse
is given.—
R. v. Dolan
—(1969) 3 A.E.R. 683.
10—Police stop driver and ask him for a breath test—
No equipment available so radio message sent—Police
man asks driver to walk with him towards police car with
equipment. They walk 160 yards. Driver not cautioned,
but subsequently breath tested. Case dismissed, because
test was not nearby where driver was stopped.—
Dohergan
v. Ward,
Q.B.D. 1969) 3 A.E.R. 636.
11—In breathalyser cases it is no longer necessary for
formal proof to be given that the Alcotest R 80 device
has been approved by the Secretary of State in accord
ance with the definition of " breath test" in section 7 (i)
of the Road Safety Act, 1967. A court including a jury is
entitled to take judicial notice of the fact because there
have been so many cases in which it has been proved.
The Court so stated in a reserved judgment whin dis
missing an appeal by Reginald William Jones, aged 23,
a driver, of West Kirby, Cheshire, from his conviction
last December at Anglesey Quarter Sessions (Chairman:
Mr. Francis William, Q.C.) of attempting to drive with
a proportion of alcohold exceeding the prescribed limit
contrary to Section i (i) of the 1967 Act.—
R. v. Jones
—
Court of Appeal (Lord Justice) Edmund Davies, Fenton
Atkinson and Shaw.—The Times, November 1969.
12—The defendant, who was driving, was given a
breath test under the Provisions of the Road Safety Act
1967; the test proved positive and he was arrested. At
the police station he refused to give a sample of blood or
urine, stating " No, I want to speak to my solicitor."
He was charged with failing to give a sample contrary to
ss.
i and 3
(3) (a) of the Act of 1967. He was then
allowed to speak to his solicitor, after which he offered
to give a blood sample; the offer was refused. At his
trial he pleaded guilty.
Held,
that the refusal of his belated
offer of a sample was not a " special reason" within
s. 5 (i) of the Road Traffic Act 1962 for not disqualifying
him:
Hosen v. Edmunds
(1969) 113 S.J. 759 D.C. [G.H.]
13—A breath test under the provisions of the Road
Safety Act 1967 cannot be valid if the driver has con
sumed alcohol between driving and taking the test; if that
is established, then any charge under the Act must fail
and it is not open to the jury to convict on the basis that
they consider on the evidence that the defendant must
have had more than the statutory maximum of alcohol
in his blood even while driving. It is for the defendant to
raise the defence but if it is raised it is for the prosecuton
to show that the story cannot be true. Per Lord Parker
C.J.; This Act is full of loopholes and is giving untold
trouble to magistrates and juries all over the country:
R.
v.
Durrant,
The Times, October 17, 1969, C.A.
14—The defendant, who had an excessive amount of
blood alcohol, stopped his car and held a conversation
with his passengers. After
twenty minutes
a con
stable approached and conducted a breath test,
the
defendant was arrested and charged with being a person
driving contrary to s. I (i) of the Road Safety Act 1967.
Held,
that he was not a " person driving " within s. i (i),
for although he intended to continue his journey in due
course and was still in the driving seat, he had stopped
for the purpose of holding the conversation and not for
any purpose connected with driving the car. (Finn
v.
Eyerett
[1969] 9 C.L. I77b applied):
Stevens v. Thorn-
borrow,
The Times, October 25, 1969, D.C.
15—The defendant, who was driving a car, was ordered
to stop by a constable who thought he might have had
too much drink. The defendant drove off the road onto a
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