Current defence strategies in some contested drink-drive prosecutions: Is it now time for some additional statutory assumptions?

Abstract

The prosecution of those socially irresponsible individuals who drive when they have had too much to drink - in that their breath, blood or urine alcohol level exceeds the prescribed legal limit - has been standard practice since October 1967. The forensic analysis of whichever type of specimen is taken from the suspect operates to a high degree of accuracy. Despite this a defence industry continues to operate in which specialist privately-funded legal practitioners [solicitors and counsel], in conjunction with several 'experts' whom they routinely instruct, seek to persuade the Courts that the alcohol reading on which the Crown's case depends cannot be correct as it does not accord with what their client subsequently states he had to drink. The defence team then seek copious disclosure of documents regarding the instrumentation that was used for the analysis, in the underlying hope that these are not produced: they can then make an application to the Court that their client is unable to have a fair trial as a result. Recent case law has improved the disclosure situation, but such cases still involve a quite disproportionate time input from the Police, the CPS and the Courts. Most drink-drive prosecutions today are based on evidential breath analysis: only instruments that have been Type Approved to a Government specification are used. Each analyser is periodically tested and then checked as a part of each subject's analysis procedure to ensure it is operating accurately at that time. There is no recorded case of such an instrument having given an inaccurate reading. It is therefore time that a Statutory Assumption should be enshrined in the legislation to the effect that an evidential breath alcohol reading should be assumed to be accurate unless there is some direct evidence [as opposed to inferential evidence] to the contrary. Likewise with blood and urine specimen analysis, before a subject can challenge the Crown's result he should have his own part of the specimen analysed. The result of this should be significantly different to that of the Crown's analysis, and it should also be consistent with his stated consumption. Failing these defence requirements the Crown's reading should be assumed to be accurate. In the continued absence of these suggested Statutory Assumptions we might as well dispense with breath, blood and urine analysis altogether and simply base all drink-drive prosecutions simply on the calculation result based on the suspect's stated consumption.

Keywords: Blood alcohol; Breath alcohol; Defence; Drink-drive; Statutory Assumptions.