Persaud v Director of Public Prosecutions

Where a driver elects under section 8(2) of the Road Traffic Act 1988 to replace a breath specimen with a blood or urine specimen, the alternative specimen is optional, not required under the section 7 scheme. A section 7(7) warning is therefore inappropriate. The driver may withdraw the election by giving an unequivocal indication that he will not provide the alternative specimen. A failure to answer a question about consent is insufficient unless the justices find that the driver thereby abandoned the election. If the election is withdrawn, the breath specimen may be used in evidence.

The appellant was convicted by Woolwich Magistrates’ Court of driving with excess alcohol, contrary to section 5(1)(b) of the Road Traffic Act 1988. His lower breath reading was 50 microgrammes of alcohol in 100 millilitres of breath, entitling him to elect under section 8(2) to provide blood or urine for laboratory analysis.

He elected to provide a laboratory specimen, but later gave no answer when asked by a police officer whether he consented to provide blood. The officer treated this as a refusal. The magistrates convicted him using the breath specimen. The appeal concerned whether the appellant had withdrawn his election, whether the question asked on the standard form was lawful, and whether consent had to be given both to the police officer and to the medical professional.

1. Appeal allowed. The magistrates had not made the essential finding that the appellant unequivocally abandoned his section 8(2) election. Their answers could not support the conviction on the breath evidence.
2. The court distinguished the two statutory schemes. Under section 7 of the Road Traffic Act 1988, a constable may require specimens and must give the warning required by section 7(7). Under section 8(2), however, the provision of blood or urine follows the driver’s claim to replace the breath specimen. It is an election, not a requirement imposed under section 7. If the driver withdraws that election, the lower breath specimen may be used.
3. The tentative observation in DPP v Warren [1993] AC 319 that a section 7(6) prosecution might theoretically be possible after a section 8(2) election was unnecessary to the decision in that case and was incorrect. The court declined to follow it. A section 7(7) warning is a prerequisite to a conviction under section 7(6), and no such warning was given or required in this case.
4. The question in paragraph B14 of the standard form was not unlawful. An affirmative answer to the police officer did not remove the need for consent when the medical professional attended. Conversely, an unequivocal indication at the earlier stage that the driver would not consent to blood could amount to withdrawal of the election. The principles in Friel v Dickson [1992] RTR 366 supported the need for consent at the time of taking.
5. The magistrates were entitled to treat the appellant as having refused to answer B14, but they had to decide whether that conduct amounted to an unequivocal refusal to provide blood and abandonment of the earlier election. They had not done so. The questions were answered: 1, no; 2, did not arise; 3, there was no legal impediment to asking B14; 4, no.

• High Court (Administrative Court): allowed the appeal by way of case stated from the decision of Woolwich Magistrates’ Court dated 18 February 2009.
• Woolwich Magistrates’ Court: convicted the appellant of driving with excess alcohol.