Saturday, 5 December 2015

Heartburn and drink driving

Woman with heart burn clutching her chest
Up to 12.8 million people in UK could be at risk of false high alcohol readings
as a result of chronic heartburn
Drink driving convictions usually rely on a breath test to prove that the driver was above the drink driving limit.  An interesting problem arises when somebody who has drunk a small amount of alcohol provides a specimen of breath but brings up gas from their stomach at the same time causing a false high alcohol reading.

In researching this topic I’ve seen judges call this stomach gas all kinds of things like “heartburn”, “air”, “eructation”, “burps” and “mouth alcohol”.  Whatever you choose to call it quite clearly if you have been drinking and bring gas up from your stomach there is every chance that it will contain some of the alcohol that is still in your stomach.  If you happen to be providing a specimen of breath when this happens, then it is entirely possible that some of the alcohol from your stomach will be blown into the machine and give a false reading that does not reflect how much alcohol is actually in your breath.

This is a bigger problem than you might think.  Research has shown that 20% of the US population suffer chronic heartburn with symptoms appearing at least once a week while 7% have daily symptoms.  If that holds true in the UK that would mean there are 12.8 million people who may find themselves giving a surprisingly high alcohol reading at the police station.

You would think that if the specimen of breath does not accurately reflect the amount of alcohol in your breath that the test would be unreliable and so you would have a defence.  Unfortunately, this is not how the courts see things.  In the case of Zafar v DPP, the court was asked to define the word “breath” and it came to a rather surprising decision.  The court ruled that “breath” means “air exhaled from any thing”.  With respect to the court that is a nonsensical definition – breath is air exhaled from the lungs of a living creature – that is the definition given by the Oxford English Dictionary, despite what the court claimed in Zafar.  It cannot include air exhaled from other bodily orifices, nor can it include air exhaled from something that is not alive.  Nonetheless, the court’s definition could easily include flatulence and I seriously doubt that the court would agree somebody was trying to provide if they farted into the Intoximeter.

This bizarre definition was upheld by a subsequent court in the case of Woolfe v DPP, which means that we are probably stuck with this nonsense until another case reaches a higher court in the future.

Because the court has said that gas from the stomach counts as breath the fact that you brought up additional alcohol from your stomach would not give you a defence to drink driving.

But, all is not lost because if you are one of the many people who suffer chronic heartburn (properly known as gastro-oesophageal reflux disease) and you do produce a false high reading then you can rely on your condition to provide you with a special reason to avoid the disqualification that normally follows a drink driving conviction.

In the case of Ng v DPP, O Sang Ng pleaded guilty to drink driving and argued that he should not be disqualified as his chronic heartburn amounted to a special reason not to disqualify him.  The District Judge refused his case saying that the raised level of alcohol in Ng’s breath was special to Ng not to the offence (special reasons must relate to the offence not the offender) and that Zafar v DPP prevented the judge taking account of the false high reading caused by the gas from Ng’s stomach.

The High Court re-considered Ng’s case and ruled that the district judge was wrong on both counts.  First, the High Court said, “the evidence upon which the appellants sought to rely went directly to the commission of the offence. If accepted it could provide an explanation as to why the level of alcohol in the appellant's breath exceeded the prescribed level” – so heartburn explained why Ng provided a specimen over the limit; it related to the offence not the offender.

Next, the High Court considered whether the district judge had got the law right when she considered the case of Zafar.  Again, the High Court ruled that the district judge had got the law wrong and that Zafar’s case did not prevent somebody relying on chronic heartburn to keep their driving licence.

So, while a rather peculiar interpretation of the English language will prevent you relying on chronic heartburn as a defence (even where you were not actually over the limit or impaired); a sensible interpretation of that peculiar case means that you will still be able to keep your driving licence.

If you have been accused of drink driving and need legal advice from an expert solicitor who specialised in drink driving law then contact the London Drink Driving Solicitor on 020 8242 4440.

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