“Sorry Judge, I Was Too Drunk To Give a Breath Sample”
Defendant was unsuccessful in arguing that self-induced intoxication was a defence to failing to provide a breath specimen.
An interesting case has recently concluded in the High Court which addressed whether someone being “too drunk” to provide a breath sample would have a defence to the allegation of failing to provide a specimen.
Cases have addressed this point previously and provided rather specific guidance, however the particular circumstances of this case ultimately led to an appeal reaching the High Court and the judgment provides clarity and confirmation of the court’s position - ultimately, being too drunk cannot be used as a defence to failing to provide a breath specimen.
I suspect that many readers would assume that this is an obvious position to adopt, however it is not as straightforward as it initially appears.
The Law for Failing to Provide a Specimen of Breath
During an investigation into drink driving, Section 7 of the Road Traffic Act empowers a police constable to lawfully require a suspect to provide a sample of breath for analysis. The same section also confirms that a failure to provide the sample amounts to an offence, unless the suspect had a reasonable excuse for the failure.
The term “reasonable excuse” is relatively vague and it has taken decades of case law to provide the courts a degree of guidance and scope as to the types of arguments that can amount to a reasonable excuse.
Previous case law has established that a reasonable excuse “must arise from a physical or mental inability to provide” the specimen but ultimately whether a reasonable excuse exists is a question of fact to be decided by the court based on the evidence available at the time.
If someone is so intoxicated that they physically cannot provide a breath sample - should that amount to a reasonable excuse?
The Magistrates’ Court Trial
On the evening of 7th November 2015, the defendant, Mr Camp was stopped by a police constable for driving erratically. He showed obvious signs of drunkenness and had also wet himself. After being helped out of his car it was noted that he was very unsteady on his feet.
At the roadside, Mr Camp provided a specimen of breath, which was 120 microgrammes of alcohol in 100 millilitres of breath. Later, at the police station, the PC conducted the police station breath test procedure (the Manual of guidance drink and drug driving/form MGDD/A procedure) and gave evidence at trial to say that Mr Camp had tried to provide a sample of breath and volunteered her belief that he was too drunk to do so. She told the court she had been satisfied that Mr Camp understood what was required of him.
Mr Camp apparently mentioned that he suffered from asthma, but the officer did not consider this a sufficient “medical reason” to abort the breath test procedure. The officer made no enquiries as to the validity of this claim and did not contact a Force Medical Examiner to assess Mr Camp with a view to potentially require a blood or urine sample as an alternative to breath. The PC failed to make adequate notes about this part of the procedure and did not state at this point that she considered the suspect too drunk to provide a breath specimen. The reason given by the constable for the “incomplete procedure” was:
“Subject unable to blow long enough to provide a sample” (which in itself seems to suggest a physical inability).
In cross-examination she again said she thought he had been too drunk to complete the procedure despite having clearly made attempts to do so she again asserted that, in her view, excessive drunkenness was not a “medical reason”.
Evidence was also given by a Police Sergeant who confirmed that no reason had been entered on Mr Camp’s custody record for his failure to provide a specimen of breath - something that is specifically required by the procedure.
Dr Paul Williams gave evidence for the prosecution. Having viewed the video of the procedure undertaken at the police station, his opinion was that there was no obvious sign of the respondent suffering from asthma and that the respondent appeared to stop blowing.
Mr Camp did not give his own evidence during trial and the court is allowed to draw a negative inference from that. There was also no other witnesses called as part of his defence.
Dr Williams’ involvement suggests that the breathalyser used in this case was a Lion Intoxilyser manufactured by Lion Laboratories. Dr Williams has been the International Marketing Manager for Lion so has a financial interest in its success. This leads to the question; could Dr Williams provide an unbiased view?
The district judge ultimately found Mr Camp not guilty, as he “had a reasonable excuse, he was simply too drunk to provide”.
The Appeal – DPP v Michael Camp 2017
The Prosecution lodged an appeal by way of case stated and two specific questions were raised: