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| The Alcosense Elite is the breathalyser I use at home |
Many of us keep a breathalyser at home to check that we
are safe to drive the day after drinking (okay and maybe sometimes to see who
can handle their drink best) but what if the machine gets it wrong?
At heart, most of the home breathalysers work using an
infrared detector to count the number of alcohol molecules passing over the
sensor; this is exactly how the police’s roadside breathalysers work. It’s even how the Camic Datamaster and Lion
Intoxilyser (two of the three evidential breath machines used in police
stations) work – the Intoximeter EC/IR uses both infrared and fuel cell
technology. Given that they use the same
technology as their professional counterparts you may well assume that the home
breathalysers will be as reliable, but some reports have suggested that the
home breathalysers are unreliable.
We are solicitors not toxicology experts so we are not
going to consider the reliability of home breathalysers. Instead we will look at what happens if you
rely on one only to be let down.
Let’s clear one question up right away – if your
breathalyser says you are under the limit but the police say you were over the
limit, can that be a defence? No. The
law is quite simple, if you drive on a road or other public place with excess
alcohol you are guilty of drink driving, it doesn’t matter why you did it.
But, the really interesting question (well to me, but
then I am a solicitor who specialises in drink driving law) is whether reliance
on a home breathalyser can amount to a special reason for not disqualifying.
Now, the court must disqualify a drink driver for a
minimum of 12 months unless there is a special reason not to do so. Way back in 1939 the High Court in Northern
Ireland said that a special reason is something that should be considered by
the court when it passes sentence and should be “directly connected with the
commission of the offence”. This was
incorporated into English law when Lord Goddard gave judgment in the 1946 case
of Whittal v Kirby. But, it wasn’t until 1958 in the case of R v
Wickens that we finally got the modern definition of a special reason. Mr Justice Devlin set out four points for a
defendant to prove if he wishes to avail himself of special reasons. The reason must:
1. Be
an extenuating or mitigating circumstance;
2. Not
amount to a defence to the allegation;
3. Be
directly connected with the commission of the offence;
4. Be
one that the court should properly take into account when imposing sentence.
This test has been severely restricted by subsequent
cases; however, I have yet to find a case where somebody has relied on a
malfunctioning breathalyser as a special reason – though this area of law is
hardly fast moving when the main cases are over half a century old.
Broadly speaking special reasons in drink driving can be
split into three categories: those explaining how the defendant came to be over
the drink driving limit; reasons explaining why he or she drove above the
limit; and anything else.
Let’s think about our situation where a man, we’ll call
him Gary, has been out drinking one evening.
The following morning, he gets up, feels fine and blows into his
breathalyser. The breathalyser shows a
reading of 20 mg of alcohol per 100 ml of breath, a reading well below the
drink driving limit. Gary decides he’s
safe to drive. Shortly after leaving
home, Gary is involved in a minor road traffic accident, the police arrive and
breathalyse him. The roadside test comes
back showing Gary is over the limit – the evidential breath test at the police
station confirms this and Gary is charged with drink driving.
Gary’s account is one that explains why he drove while
over the limit. But does it meet the
other criteria?
Is being misled by a malfunctioning breathalyser
mitigating or extenuating? I would say
that it is because it goes to show that Gary was being careful and attempting
to avoid drink driving – it was not something that he set out or wanted to
do. That is mitigating in my book.
Is Gary’s account a defence in law to drink driving? Nope.
Is his account directly connected with the commission of
the offence? Yes. If Gary is to be believed, he was being as
careful and would not have driven had the breathalyser indicated he was over
the drink driving limit. He therefore
only drove because he was misled by the device he purchased to prevent him
drink driving.
Should the court take this into account when passing
sentence? That’s a matter for the
magistrates but I would be surprised if a court said no.
So, on the face of it a misleading reading from a home
breathalyser is capable of amounting to a special reason.
If you have been accused of drink driving you can get
expert legal advice from London Drink Driving Solicitor on 020 8242 4440.
