Ijaz, R (on the application of) v Director of Public Prosecutions

For the statutory replacement procedure to be completed, the driver must give an unequivocal answer when offered the option of replacing a qualifying breath specimen with blood or urine. Once that answer has been given and recorded, a later explanation for the refusal does not reopen the option or amount to its exercise. The procedure does not require an officer to allow additional time merely because the driver might later explain the decision. A case involving temporary indecision is materially different from one in which the driver has clearly answered no.

The claimant appealed by way of case stated from his conviction by Luton Magistrates for driving with alcohol above the prescribed limit, contrary to Road Traffic Act 1988, section 5(1)(a). One of two breath specimens contained 49 micrograms of alcohol per 100 millilitres, so the claimant was offered the statutory option under section 8(2) of replacing the breath specimen with blood or urine.

He answered no. The officer recorded that answer and the computer-generated procedure was completed. Two or three minutes later, while reports were being printed, the claimant said that he had a phobia of needles. The magistrates held that the procedure had been properly completed. The central issue was when the procedure under sections 7(3) and 8(2) was complete.

1. Appeal dismissed. The court answered the case-stated question in the affirmative. The claimant was ordered to pay £500 towards the respondent’s costs, such order not to be enforced without leave of the court.
2. Section 8(2) gave the claimant an option to have the qualifying breath specimen replaced by a blood or urine specimen. The magistrates found that the option had been properly explained and that the claimant had considered it before answering no.
3. The answer was unequivocal. It was therefore sufficient to complete the option procedure when it was entered into the computer and the necessary forms were produced. The statutory scheme did not require the officer to wait for a further period so that the claimant could reconsider or explain his decision.
4. The later statement about a phobia of needles was a partial explanation for the earlier refusal. It was not a purported exercise of the statutory option, nor did it trigger the medical procedure under section 7(4A). The claimant had not immediately changed his mind after answering no.
5. The court distinguished Smith v Director of Public Prosecutions [1989] Road Traffic Reports 159, where the circumstances contemplated included a person who had not yet made up his mind. This case concerned a person who had made up his mind and had given a clear refusal.

• High Court (Administrative Court): The appeal by way of case stated from the Luton Magistrates’ Court conviction was dismissed. The conviction was upheld.