Crime Solicitors

“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:

1. Whether the fact that Mr Camp was so intoxicated that he was physically unable to provide a breath sample amounted to a reasonable excuse under section 7 of the Road Traffic Act 1988 and;
2. Whether the court was correct to find that the PC in this case should have aborted the breath test procedure, notwithstanding the discretion she was allowed under section 7(3)(a) which allows her to make a judgement on whether there were any medical reasons which would prevent the provision of a sample.
3. The relevant part of Section 7(3)(a) (which relates to the taking of blood/urine samples) states that the procedure cannot be conducted at a police station unless the constable has reasonable cause to believe that for medical reasons a specimen of breath cannot or should not be required.

A “reasonable excuse” can include non-medical reasons and the existence of which is a question of fact to be decided by the court.

There is previous case law that addresses issues of language barriers preventing comprehension of the requirement amounting to a reasonable excuse. In 1992, as part of a case in the Divisional Court, the Judge stated:

“… There is, in my judgment, a clear distinction between the present case and the language cases (where a language barrier prevents the suspect from understanding the requirement). It would […] defeat the object of the legislation […] to hold that the fact that the defendant was too drunk to understand what was said to him could provide him with a reasonable excuse. It would also be an abuse of language so to describe it. […] the justices misdirected themselves on the law in holding that the fact that the defendant was so intoxicated […] that he was unable to understand the procedure under section 7(7) and the consequences of a refusal could amount to a reasonable excuse.”

The Judgment

There are countless cases with interesting arguments about this point as to self-intoxication and the comprehension of the legal requirement which is why the ruling in the case of Camp will likely be welcomed by the Prosecution for the clarity it provides.

The judge considered submissions from both sides as well as the decisions in several previous cases. He ultimately determined the following:

1. The scope of a “reasonable excuse” for the purposes of section 7(6) will always be a question of fact for the court based on the evidence available.
2. There is a real difference between a true explanation for a person’s failure to provide a specimen and a “reasonable excuse” for that failure. An explanation may constitute an excuse, and that excuse may be a reasonable one. But that is not necessarily so. The fact that voluntary intoxication may sometimes explain a person’s inability to provide a specimen does not mean that that person will therefore have a “reasonable excuse” for not doing so.
3. It is important to distinguish between the concept of “medical reasons” in section 7(3) and, the concept of a “reasonable excuse” in section 7(6). The two concepts are not the same, nor should they be confused.
4. Where the court is concerned with the question of whether or not a defendant’s excuse is a “reasonable excuse”, it must recognise the intention and purpose of the Road Traffic Act 1988 Act, and must gauge whether the excuse submitted can properly be regarded as reasonable.

When considering whether the officer should have abandoned the breath procedure and made a requirement for blood or urine, the judge went on to explain that his judgment on the issue aligned well with the Court of Appeal decision which stated that intoxication amounted to “medical grounds” to justify the provision of a blood or urine sample.

Author Neil Sargeant is a Road Traffic specialist within the Duncan Lewis Crime Department, based in Harrow. For specialist advice please call Neil on 02031141145 or email him on neils@duncanlewis.com. His specialist expertise is most extensive in:

• Drink Driving (with breath, blood or urine samples);
• Drug Driving;
• Failing to provide a specimen for analysis whether this be breath, blood or urine;
• Being drunk in charge of a vehicle;
• Any type of road traffic case that involves a procedure conducted at hospital;
• Dangerous & Careless driving; and
• Cases involving a fatality.

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