Jan 3

A successful start to the year…

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JT had never been in trouble with the police before, but he tested positive for alcohol at a roadside breath test. He was arrested and taken to the local police station. As the reading was a low one (42 in breath with the legal limit being 35), he was statutorily entitled to have his blood tested too. This tends to provide a more accurate result, but it was late and the officer conducting the test suggested it would be quicker and easier not to do the blood test. JT followed the officer’s steer and declined the blood test option. This was crucial as the breath test result was only marginal and a blood test may have indicated a lower reading, which could have precluded prosecution.

Because of the officer’s unfair intervention, however well-intentioned it may have been, JT lost an important right. In those circumstances the breath test procedure should have been excluded as evidence, or the prosecution discontinued because the procedure was or may have been unfair. At the trial in the Magistrates’ Court the video of the procedure was played and the arguments presented, but the Magistrates chose not to accept the clear legal arguments in favour of JT. He faced an immediate one year driving ban, but defendants in the Magistrates’ Court can appeal to the Crown Court against both sentence and conviction as of right. On advice JT did so. His appeal was allowed, with the Crown Court judge making clear his view that the prosecution should never have continued after the defence legal arguments were raised (several months earlier).

The ban imposed by the Magistrates was also set aside pending his appeal so JT was able to drive throughout the proceedings, which took more than a year to conclude from the time of his arrest. The case not only vindicates the original advice to challenge the prosecution, but shows that with a little patience defendants can achieve the desired result, and, as in this case, get awarded their costs too.