SALESMAN 3 TIMES OVER THE DRINK DRIVE LIMIT AVOIDS BAN BECAUSE HE WAS TOO DRUNK TO PROVIDE A SAMPLE!
That was the headlines in today’s press.
The CPS are appealing a decision by a District Judge who found Michael Camp not guilty of failing to provide a sample of breath. We don’t know the full details of the case so are relying on the press for the reports but it appears that Mr Camp was arrested for drink driving and whilst trying to give a breath sample was so drunk he collapsed and was unable to give a sample.
This is governed by the Road Traffic Act 1988 s7 (6)
Provision of specimens for analysis.
(1) In the course of an investigation into whether a person has committed an offence under section 3A, 4 or 5 of this Act a constable may, subject to the following provisions of this section and section 9 of this Act, require him—
(a) to provide two specimens of breath for analysis by means of a device of a type approved by the Secretary of State, or
(b) to provide a specimen of blood or urine for a laboratory test.
(6) A person who, without reasonable excuse, fails to provide a specimen when required to do so in pursuance of this section is guilty of an offence.
The law states that you are only guilty of failing to provide a sample of breath if you do not have a reasonable excuse for failing to provide that sample.
The court must be satisfied beyond reasonable doubt that the defendant had no reasonable excuse before he can be convicted. The prosecution have to prove that he did not have a reasonable excuse.
It was said in R. v Lennard above that a reasonable excuse “must arise out of a physical or mental inability to provide one or a substantial risk to health in its provision”. This is a direct quote from the bible of motoring law, ‘Wilkinsons’ (of which more later)
The courts have agreed that chest complaints, lung problems and anxiety can amount to a physical or mental inability to provide a sample. But drunkenness? Surely that defeats the object of the test and means that anyone who is too drunk to give a sample gets away with drink driving. Well not quite…
The relevant case on this point is DPP V Pearman where the High Court said.
“There are two questions for our decision. The first is:
‘whether evidence of inebriation combined with a distraught, deeply emotional state, which rendered the defendant physically incapable of providing a breath specimen, could ever amount to a reasonable excuse under section 7(6) of the Road Traffic Act 1988 .’
I would answer that question ‘yes.’ Indeed, Mr Tudor Owen accepted that, in view of the very broad way in which the question is framed, there could be no other answer.”
So there is precedence for this view but generally it has to go beyond simple drunkenness.
In the case going through the courts at the moment it appears that the defendant collapsed when trying to give a sample and the District Judge said, reasonably in my view, that this meant he was unable to provide a sample. The District Judge was Peter Veits who is one of the editors of the motoring law bible Wilkinsons so can be assumed he knows what he is talking about.
The question of reasonable excuse is interesting because it can be used by the defence or the prosecution depending on the circumstances.
If the defendant fails to give a sample of breath the defence may say that being drunk is a reasonable excuse. Sometimes the police accept that and ask the person to give blood or urine. That can only be requested in certain circumstances, the relevant one here being that a police officer believes that the failure to give a sample is because the person in custody has a reasonable excuse. So you have a situation where the police ask for blood and they say they are doing that because they believe that the person is too drunk to provide breath and therefore has a reasonable excuse. The defence this time will argue that being drunk is not a reasonable excuse and the police had no right to ask for blood!
This was the case in DPP V Young (Paula) where the defendant refused to give a sample of breath; when asked if she would provide a sample she shook her head and made a two fingered gesture to the policeman, he then asked if she would give blood and she replied ‘ Will I f*ck, no’, which the officer took, perhaps not unreasonably, as a refusal.
The court said that there is no reason, as a matter of interpretation, why a state of intoxication should not be regarded as a medical reason. Therefore, in that case the police were entitled to ask for blood. Would they have said the same if it was the defence saying that the defendant was too drunk and therefore had a reasonable excuse? Maybe unlikely but presumably these cases were the basis of the District Judge’s decision in the case under discussion at the moment.
So does this mean anyone who is too drunk to stand up can get away with Drink Driving?
Not at all, for a number of reasons.
Firstly there has to be more than simply being too drunk, in fact the courts have said that being too drunk to understand the request is not a defence. I think that the difference in this case was that the defendant collapsed and therefore could not give a sample and therefore technically the Judge was correct.
But in this case the police had other options which they did not seem to take up. They could have required him to provide a sample of blood or urine, this being much easier to do than give breath. If he refused then he could have been charged with failing to provide blood or urine and his defence of intoxication is much harder to argue then.
But the glaringly obvious solution to this was for the police or prosecution to charge him with unfit to drive through drink. This is similar to drink driving and carries an automatic ban. The prosecution have to prove that he drove whilst unfit through drink. A defendant can’t argue on one hand that he was too drunk to provide a sample but on the other hand he was fit to drive.
I don’t have enough information to know why the police didn’t do this but despite the dramatic headlines this does not mean that people can easily get away with drink driving.
By: Steve Williams
Forrest Williams Legal Ltd
(This article may be used with credit and a link to this website)