The Gazette 1967/71

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 78