Stewart v DPP

Where two breath specimens produce an unreliable indication of alcohol concentration, the statutory scheme does not require the constable to proceed directly to blood or urine. Under section 7(3)(bb) of the Road Traffic Act 1988, the constable may require a laboratory specimen, but may instead offer a further breath test. Specimens that do not enable the objective of analysis to be satisfactorily achieved are not treated as valid specimens for determining whether only two breath specimens have been provided. A further breath procedure may therefore be lawful. The guidance documents have no statutory force. Section 8(1) does not alter that construction. Whether the further specimens were formally required or voluntarily chosen may also be material.

The appellant was convicted by magistrates of driving with alcohol exceeding the prescribed breath limit. At the police station, two initial breath readings differed by more than 15 per cent and were treated as unreliable. The officer then invited the appellant to choose between providing blood or providing two further breath specimens. The appellant chose breath, and the lower of the two subsequent readings exceeded the prescribed limit.

On a case stated, the appellant argued that section 7 of the Road Traffic Act 1988 permitted only two breath specimens and required blood or urine after an unreliable result. The central questions were whether the officer acted lawfully in requiring or offering further breath specimens, and whether good faith affected legality.

1. The appeal was dismissed. The court answered the first question in the affirmative and did not answer the second because the officer’s good faith was undisputed.

2. Section 7(3)(bb) permits a constable to require blood or urine where the approved device has not produced a reliable indication. It does not oblige the constable to require a laboratory specimen or prohibit an offer of further breath specimens. The Home Office Guide and MG DD/A had no statutory force and did not establish that proceeding by further breath specimens was unlawful.

3. Applying section 11(3)(b), the first two substantive specimens did not enable the objective of the analysis to be satisfactorily achieved. They could therefore be disregarded in deciding whether further breath specimens could be obtained. The constable was not obliged to require further breath specimens, but was entitled to do so.

4. The facts also supported treating the procedure as an invitation to choose between breath and blood, rather than a requirement to provide further breath specimens. Once the appellant chose breath, the procedure and the section 7(7) warning were repeated. There was consequently nothing unlawful in the procedure.

5. Section 8(1), which provides for use of the lower of two breath readings, did not affect that construction. Jubb v DPP was distinguished in context, and the court disagreed with any wider reading of an observation that further breath specimens could not be required. The court agreed with the observation that blood or urine could be required without first requiring two further breath specimens. Creech was distinguishable because the specimens there were valid and section 11(3) was not material; it nevertheless tended to support disregarding invalid specimens.

• High Court (Administrative Court): On a case stated by the magistrates, the court dismissed the appeal and answered the first question affirmatively. The second question was left unanswered.
• Magistrates’ court: Convicted the appellant on 28 October 2002 of driving after consuming alcohol above the prescribed breath limit.