The Gazette 1967/71

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 77

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 ;