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private forecourt where the car was kept; there the con
stable approached him and required him to take a breath
test under s. 2 (i) of the Road Safety Act 1967. Held,
that under the express provisions of s. (2) the requirement
could only be made on a road or other public place, the
constable had no power to make it on the forecourt, and
accordingly the defendant's conviction of an offence under
the Act must be quashed; Trigg v. Griffin, The Times,
October 30, 1969, D.C.
16—Under s. 3 of the Road Safety Act 1967, the second
breath test and the demand for and provision of a speci
men of blood must all take place at the same police
station. If the breath test is taken at one station and the
specimen! is given at another, the analyst's certificate will
be inadmissible: Butler v. Easton, The Times, October
23, 1969, D.C.
17—The defendant was supervising the driving of his
wife, a learner. He was found to have excessive blood
alcohol and charged with contravening s.
i (2) of the
Road Safety Act 1967 in that he was in charge of the car
He relied on the defence under s. i (3) that the circum-
sttances were such that there was no likelihood of his
driving, and was acquitted. The prosecution appealed,
contending that in the circumstances the defendant might
have had to take over the driving at any time, and since
the burden was on him to establish the defence there
was no evidence to support the justices' conclusion. Held,
disimissing the appeal, that the justices had heard the
evidence of both the defendant and his wife and were
entitled to reach the conclusion which they had: Sheldon
v. Jones, The Times, October 24, 1969, D.C.
18—On the true construction of s. 241 (2) of the Road
Traffic Act 1960 a notice of intended prosecution is
deemed to have been served within 14 days if it is posted
within that period; the fact that the notice arrives after
the period has expired is immaterial: Groome v. Driscoll,
The Times, October 23, 1969 D.C.
19—A motorist found after a blood or urine test to have
excessive alcohol in his body cannot now escape because
one of the breath test rules has not been strictly followed,
if police have tried to do so in good faith, five Law Lords
ruled yesterday.
The Law Lords ruled unanimously that instructions
issued with the officially approved breath test device, the
German-made Alcotest R-8o, did not have the force of
law and1 formed no part of a valid breath test.
The decision should give a new lease of life to the
Road Safety Act 1967, which introduced the breath test
law. It should greatly simplify the task of the police n
trying to enforce it. Dozens of motorists whose cases
have been adjourned pending the House of Lords decision
now face conviction.
Loopholes that will have been closed by yesterday's
ruling are :
,i. A motorist will no longer necessarily escape if he
can show the breath test was taken within 20 minutes
of his finishing his last drink. If they have reason to
believe a motorist has had a drink in the preceding
20 minutes, the police need not delay carrying out
the test.
2. A breath test will not be invalidated if the police fail
to ask if the motorist has been smoking immediately
before taking the test. If the police see that a person
is smoking or suspect he was smoking recently, they
should delay the test.
3.
Failure to inflate the bag in one breath lasting be
tween 10 and 20 seconds—another requirement of the
instructions—will not invariably invalidate the test
and the subsequent arrest. In these circumstances the
police should ask for another test.
4. The Law Lords have apparently scotched the exten
sive loophole that a motorist, stopped by the police
and asked to have a breath test, could avoid arrest
and conviction by taking a quick drink from a bottle
in his car.
5. Another instruction on the breath test kits that will
no longer be construed as having the force of law is a
direction that the kits should not be stored at tem
peratures above 86 deg. F.
In yesterday's case, the House of Lords allowed a
police appeal against the refusal of magistrates at
St. Albans to convict Mr. Michael Carey, of taking
excess alcohol and driving.
The case was sent back to the magistrates by the
House of Lords with a direction to convict Mr.
Carey.
In his judgment, Lord Diplock said:—" If it is firmly
borne in mind that all the statute requires of a
constable is that he should act in good faith, the
technical difficulties suggested in recent decisions of
the courts, which are tending to defeat the object of
the Act by making it unworkable, disappear ".
It was important to remember that the result of a
blood or urine analysis provided the sole criterion as to
whether an offence under the Act had been committed.
Reading from the road-side breath test or from the
second breath test that a motorist had to be offered at
the police station were safeguards which were to avoid,
so far as possible, the arrest and continued detention of a
person who had not committed an offence, and the
enfoced taking of a specimen of his blood.
A constable conducting the test must do his honest
best to see that the instructions about filling the bag
were complied with.
Unless
it appeared the suspect had been drinking
within the last 20 minutes, there was no legal obligation
on the constable to inquire. The suspect was under no
legal obligation to answer an inquiry or, if he did reply,
to give a true answer.
Viscount Dilhorne said that although the Act required
the police to use a breath test approved by the Home
Secretary,
it did not
require his
approval
of the
instructions.
In Mr. Carey's case, the arresting officer did not find
out when Mr. Carey had taken his last drink or whether
he had been smoking immediately before the test.
Viscount Dilhorne concluded that it would be " excep
tional if a conviction was quashed on the gruond that,
although the ingredidents of the offence were clearly
established, the conviction was preceded by an arrest
which after the event was shown to be wrongful".
Lord Pearson said that the roadside test was a preli
minary screening
test designed to eliminate persons
whom the subsequent laboratory test would exculpate
Perfect compliance with the instructions in all cases was
not to be expected. The law did not compel people to
perform impossibilities.
Mr. David Napley, Chairman of the Law Society's
Committee on the criminal law, said that although the
judgment was welcome as a temporary expedient to help
the police, it " led to new inconsistencies in the law ".
Parliament had apparently intended that the screening
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