Woolfe v DPP

For the statutory breath test, “breath” is not confined to deep-lung air. Breath contaminated by alcohol from regurgitation remains breath for the purposes of the statutory scheme. Regurgitation and subsequent reabsorption do not constitute a further act of consumption capable of invoking the statutory “hip flask” defence. A medical condition may nevertheless amount to a special reason relating to sentence, even where it does not provide a defence to the offence. The question of special reasons must be considered separately from liability, applying the appropriate civil standard of proof.

The appellant was convicted at Epping Magistrates’ Court of driving with excess alcohol after an intoximeter recorded readings of 69 and 65 micrograms of alcohol per 100 millilitres of breath. He relied on a medical tendency to reflux and expert evidence that regurgitation could have affected the readings. The magistrates considered themselves bound by Zafar v DPP and convicted him. They also rejected the possibility that the medical condition constituted a special reason against disqualification.

On appeal by case stated, the Divisional Court considered the meaning of “breath”, whether regurgitation and reabsorption amounted to consumption after driving, and whether the medical condition could constitute a special reason.

1. Appeal allowed in part. The first question was answered affirmatively, the second negatively, and the case was remitted to the magistrates for reconsideration of special reasons.
2. The court followed the reasoning in Zafar v DPP [2004] EWHC Admin 2468. The statutory reference to “breath” did not require a distinction between deep-lung air and breath affected by alcoholic contents in the mouth or oesophagus. That conclusion was also consistent with O’Sullivan v DPP [2005] EWHC 564 (Admin).
3. Regurgitation followed by a second swallowing was not a further act of consumption for the purposes of the statutory “hip flask” defence. The argument could not circumvent the rule in Zafar v DPP. The second question was therefore answered in the negative.
4. The magistrates erred in treating the absence of a defence as precluding special reasons. Under section 34(1) of the Road Traffic Offenders Act 1988, and the requirements identified in Wickens (1958) 42 Cr App R 236, a special reason must be a mitigating or extenuating circumstance, not amount in law to a defence, be directly connected with the offence, and be a matter properly considered in sentencing.
5. On remittal, the magistrates had to decide on the balance of probabilities whether the alcohol consumed was insufficient by itself to exceed the limit, whether regurgitation occurred on each relevant occasion, and whether regurgitated alcohol caused the readings to exceed the limit. They then had to exercise the sentencing discretion in a separate second stage, applying R v Newton [1974] RTR 451.

• High Court (Administrative Court): The appeal by case stated was partly allowed. The conviction-related questions were answered against the appellant, but the issue of special reasons was remitted to the magistrates for reconsideration.
• Epping Magistrates’ Court: The appellant was convicted of an offence under section 5(1) of the Road Traffic Act 1988, fined and disqualified.