McNeil v Director of Public Prosecutions

For the purposes of Road Traffic Act 1988, breath potentially affected by burping, reflux or regurgitation remains breath within the statutory scheme. Such an occurrence cannot, without more, provide reasonable cause to believe that an Intoximeter has produced an unreliable indication of the proportion of alcohol in the breath under section 7(3)(bb). A blood sample required on that basis is unlawfully obtained, and a conviction founded on it cannot stand.

The claimant appealed by way of case stated against his conviction by Halton Justices for driving with excess alcohol. After two Intoximeter breath readings, he told the police officer that he had burped. The officer followed the prescribed form and required a blood sample, which produced the result relied upon for conviction.

The claimant contended that the statutory condition for requiring a blood or urine specimen was not satisfied because the officer lacked reasonable cause to believe that the breath instrument had produced an unreliable indication. The central issue was whether burping could legally make the breath indication unreliable.

1. The appeal was allowed. The conviction could not be sustained because the blood sample had been required without the statutory condition in section 7(3)(bb) of the Road Traffic Act 1988 being satisfied.
2. Section 7(3)(bb) permits a blood or urine specimen to be required after an Intoximeter breath test only where the constable has reasonable cause to believe that the device has not produced a reliable indication of the proportion of alcohol in the person’s breath. The relevant cause must be legally capable of making the indication unreliable.
3. The reasoning in Zafar v Director of Public Prosecutions [2004] EWHC Admin 2468, endorsed in Woolfe v Director of Public Prosecutions [2006] EWHC Admin 1497, established that breath affected, or potentially affected, by reflux or regurgitation is not treated differently. It remains breath within the statutory scheme.
4. The same principle applied to burping, or eructation. The officer was not at fault in following the prescribed form, but the form reflected an erroneous legal assumption. Being told that the claimant had recently burped was not, in law, capable of rendering the Intoximeter indication unreliable.
5. The court therefore found it unnecessary to determine whether the officer subjectively believed that the indication was unreliable, or to resolve the relationship between Davis v Director of Public Prosecutions [1988] RTR 156 and Dixon v Director of Public Prosecutions [1993] RTR 22. Costs were ordered from central funds.

• High Court (Administrative Court): On an appeal by way of case stated, the court allowed the appeal against the conviction.
• Halton Justices: Convicted the claimant of driving with excess alcohol, relying on the blood sample result.