Motorist receives leniency because of flaw in police procedure

Posted by Barry Culshaw on

The case

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.

About the Author

Barry Specialises in road transport law within our Driver Defence team. He represents clients facing allegations of careless/dangerous driving, driving with excess alcohol and speeding.

Barry Culshaw
Email Barry
023 8085 7209

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