QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Sitting at Sheffield Crown Court
B e f o r e :
|THE QUEEN ON THE APPLICATION OF DIRECTOR OF PUBLIC PROSECUTIONS||(APPELLANT)|
|LISA WENDY CHAMBERS||(RESPONDENT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MISS C SPEDDING appeared on behalf of the RESPONDENT
Crown Copyright ©
"We were told that the two experts considered both the drinking pattern outlined in the form TF7 and relied upon by the appellant and the drinking pattern proposed by the respondent and gave their conclusions based on each scenario. Although they had to assume that the wine was a standard 12 % alcohol by volume and taken in 250 millilitre glasses and that the vodka was a standard 37.5 % alcohol by volume, they agreed that the drinking pattern outlined in the form TF7 was consistent with the intoxilyzer reading obtained. However they were both of the opinion that it was unsafe to use that reading to calculate either forwards or backwards to establish the respondent's breath alcohol reading at the time of driving because there was only a 20 minute interval between the pre-accident drinking and the respondent driving such that the respondent's breath alcohol level was likely still to be rising. We were informed that in order to calculate forwards or backwards from the intoxilyzer reading it is necessary to be certain that all of the pre-accident alcohol has been absorbed into the blood stream and for the breath alcohol level to be falling, otherwise any forward or backward calculation would give a falsely high reading for the time of driving. Both experts were of the opinion that at the time of the incident the respondent's breath alcohol level could have been above or below the legal limit. If the theoretical contribution to the intoxilyzer reading of the postaccident alcohol consumption shown on the form TF7, estimated at 58 micrograms, were simply deducted from that reading, the experts calculated a reading of 65 micrograms in 100 millilitres of breath.
The drinking pattern outlined by the respondent of 300 millilitres of white wine at 9 % alcohol by volume prior to the incident and 450 millilitres plus 300 millilitres of vodka at 40 % alcohol by volume following the incident was also deemed consistent with the intoxilyzer reading but the experts agreed that such a drinking pattern would not have exceeded the legal limit at any time prior to the incident. The post incident alcohol consumption could have given a reading of approximately 140 micrograms in 100 millilitres of breath. If this is deducted from the intoxilyzer reading, the breath alcohol level at the time of the incident is likely to have been very low, possibly zero. Mrs Kingsbury added that pregnancy affects alcohol metabolism but that this cannot be studied".
"We were of the opinion that the appellant had established that the respondent's breath alcohol level was over the legal limit at the time of the intoxilyzer procedure and section 15(2) presumes the level to be no lower at the time she drove her car. However, we regarded the joint statement of the two experts, Mrs Kingsbury and Dr Langford, as being evidence given by both parties so that there was evidence before the court from the respondent to negate the presumption in section 15(2) of the Road Traffic Act 1988. This led us to conclude that, having heard all the evidence for the appellant that it was not such that a reasonable tribunal might convict upon it, there being no evidence before us that the respondent's breath alcohol level was over the legal lime at the time she drove the car. There was therefore no evidence to prove this essential element of the first charge. Accordingly, we dismissed it without going further".
"(1) This section and section 16 of this Act apply in respect of proceedings for an offence under section 3(a), 4 or 5 of the Road Traffic Act 1988 (driving offences connected with drink or drugs) ...
(2) Evidence of the proportion of alcohol or any drug in any specimen of breath, blood or urine provided by the accused shall, in all cases (including cases where the specimen was not provided in connection with the alleged offence) be taken into account and, subject to subsection (3) below, it shall be assumed that the proportion of alcohol in the accused's breath, blood or urine at the time of the alleged offence was not less than in the specimen.
(3) That assumption shall not be made if the accused proves --
(a) that he consumed alcohol before he provided the specimen, and
(i) in relation to an offence under section 3(a) after the time of the alleged offence, and
(ii) otherwise after he had ceased to drive, attempt to drive or be in charge of a vehicle on a road or other public place, and
(b) that had he not done so the proportion of alcohol in his breath, blood or urine would not have exceeded the prescribed limit and, if it is alleged that he was unfit to drive through drink, it would not have been such as to impair his ability to drive properly".