Breath Discrepancy

[John24]

Well I’m in court less than two days and I still don’t know if I should plead guilty or not guilty, I blew 39, 45 and two unsuccessful attempts on the evidential breathalyser. Apparently although 35 is the known limit, under 40 is not actually chargeable, but despite this my 39 does not count because there is more than a 15% discrepancy between the readings, hence I was ordered, without reading my rights, to give the dreaded blood test which sure enough has come back conclusively at 89. I did some reading On the lion Intoxylyser an there’s something about having to wait 20 mins after a false reading for the machine to reset, but Police did all my 4 attempts in one go, hence maybe the strange higher 2nd reading 45. I just don’t know if a savvy Solicitor could argue my case on operator error and have the blood evidence dismissed or if the Judge will simply want to know the blood results and it’s game over. Feel very unlucky, been breathalysed more than 40 times in my lifetime and always passed, this time a friend, unaware I was driving, found it amusing to top up my pint with vodka.

 

[cc2491]

Post this in the 'Ask a Solicitor' Forum, you might get an answer

 

[Forum Moderator]

Well I’m in court less than two days and I still don’t know if I should plead guilty or not guilty, I blew 39, 45 and two unsuccessful attempts on the evidential breathalyser. Apparently although 35 is the known limit, under 40 is not actually chargeable, but despite this my 39 does not count because there is more than a 15% discrepancy between the readings, hence I was ordered, without reading my rights, to give the dreaded blood test which sure enough has come back conclusively at 89. I did some reading On the lion Intoxylyser an there’s something about having to wait 20 mins after a false reading for the machine to reset, but Police did all my 4 attempts in one go, hence maybe the strange higher 2nd reading 45. I just don’t know if a savvy Solicitor could argue my case on operator error and have the blood evidence dismissed or if the Judge will simply want to know the blood results and it’s game over. Feel very unlucky, been breathalysed more than 40 times in my lifetime and always passed, this time a friend, unaware I was driving, found it amusing to top up my pint with vodka.

If the evidential breath testing results show a difference of more than 15% between the two readings then the evidential breath testing machine and the results it provided are deemed unreliable.

In cases where an evidential breath testing machine does not produce a reliable indication of the proportion of alcohol in a persons breath the police are well within their rights to request an alternative specimen of blood or urine for analysis under section 7(3) of The Road Traffic Act 1988.

Once an alternative specimen of blood or urine has been provided there is no requirement on the prosecution to prove that the breath testing device used was either reliable or type approved.

The request for you to provide a blood sample was lawfull as the evidential breath testing device produced unreliable results. You will not be able to successfully argue that the blood specimen evidence should be dismissed because of any problems associated with providing an evidential breath specimen, your prosecution will rely upon blood specimen evidence.

 

[John24]

Sorry late reply I’m having trouble with broadband.

Thank you all very much for your help, this forum is excellent. I’m in court tomorrow and will let you know how I get on. I did have rather a good chat today with a solicitor and as you say despite my disappointment about the breath test the Police were following correct procedure to take the blood test and that’s basically the end of it, if I had blown 39,44 instead of 39,45 I would probably have been free to walk home without being charged but as it is I missed the breath limit by a fraction of 1 point and now they will go with the 89 blood. Solicitor was keen about my drink top up scenario but I’m rather reluctant to pull my mates in on this even though part of me is furious with em, unless my Solicitor sees something wrong in procedure or paperwork I’m pretty sure I’ll be pleading guilty tomorrow, never caused any injury or damage so recon I’ll get the mandatory 12 months and hopefully be offered the course and get 3 months off.

Gone midnight as I write this so I better try and get some sleep for an early start, take it on the chin and put it down to experience.

 

[John24]

Phew yep went to Court, my Solicitor checked through my paperwork but could not pick up any procedure errors and said I had little chance of arguing about the faulty breath test machine so advised me to plead guilty. To my amazement he told me to represent myself and he would not charge his £150 fee. then by chance the Usher asked if I would like to go into the courtroom. Before I gave myself a chance to think I just said yes and went for it, the Usher guided me to the box, it was a little intimidating having three serious looking Magistrates seated high up, a Clerk on a computer and the Prosecutor. The Clerk asked me to confirm my name, DOB and address, the Prosecution then read out the charge, I was asked guilty or not guilty, I pleaded guilty, the Head Magistrate said I would be banned for 12 months but offered the rehabilitation course so reduced to 9 months, I was asked if I would like to say anything, I just said sorry I did not think I was over the limit and would not drink drive again, licence was taken and I was told I could leave. I paid a £165 fine in an office and then went home. My personal advice but only for a straight forward case is don’t be afraid to represent yourself, the Usher guided me around and the Clerk was helpful guiding me through what to say and Magistrates were serious but decent and polite to me, I’m quite a timid chap but I found the experience pretty straight forward.