Motorist receives leniency because of flaw in police procedure
Blake Morgan's Driver Defence team recently acted for B who faced a charge of driving a motor vehicle with excess alcohol at Portsmouth Magistrates' Court. The breath alcohol level alleged in the charge was very high, which meant that B was facing a community order.
How our specialist solicitors helped
Barry Culshaw – a consultant and road traffic specialist within the Motoring Offences Team sought disclosure from the Crown Prosecution Service ("CPS") of the initial details of the prosecution case.
A review of the evidence showed that the police had made an error when dealing with the breath testing procedure at the police station. B had originally provided two breath specimens but the device flagged up an error due to a difference between the two samples. In normal circumstances, the police would have proceeded to request a specimen of B's blood for analysis. However, B stated during the procedure that she had a phobia about needles. At that stage, the police should have requested a specimen of urine for analysis. Instead, the police placed B back on the same breath testing equipment and on the second occasion, the specimens of breath provided by B were within acceptable limits.
Barry advised B that the police had no power to carry out a second substantive breath test and that the second specimens of breath were unlawfully obtained and inadmissible. B tendered a not guilty plea.
The CPS decided, somewhat belatedly, to allege a count of driving whilst unfit through drink. B was advised to tender a guilty plea to the alternative count as there was overwhelming evidence that at the material time B was impaired to drive.
There was no longer any admissible evidence of the exact amount of alcohol in B's breath. This meant that the District Judge could not make a finding that, as a matter of fact, the breath alcohol was X meaning the case fell into the higher sentencing bracket and so they imposed a fine instead of a community order.
Had the breath specimens been admissible B would have been banned for 23 – 28 months. However, the District Judge decided to ban B for 12 months and also offered them the opportunity of attending the drink driver's rehabilitation course which will reduce the length of the disqualification to 9 months.
The case demonstrates the importance of a defendant seeking specialist legal advice when facing drink driving allegations of this nature.