QUEEN'S BENCH DIVISION
London WC2A 2LL
B e f o r e :
MR JUSTICE LLOYD JONES
|THE DIRECTOR OF PUBLIC PROSECUTIONS||Defendant|
WordWave International Limited
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Mr C Tonge (instructed by the CPS) appeared on behalf of the Defendant
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"(1) Did the specimens of breath provided by the appellant at Mossway Police Station at 02.55 hours and 03.04 hours on 24th September 2005 constitute valid specimens of breath for the purposes of section 11(3) of the Road Traffic Act 1988?
(2) Where the officer had reasonable cause to believe that the breath testing device had not produced a reliable indication of the proportion of alcohol in the breath of the person, could another officer require that person to provide further specimens of breath?"
"7. Provision of specimens for analysis
(1) In the course of an investigation into whether a person has committed an offence under section 3A, 4 or 5 of this Act a constable may, subject to the following provisions of this section and section 9 of this Act, require him --
(a) to provide two specimens of breath for analysis by means of a devise of a type approved by the Secretary of State, or
(b) to provide a specimen of blood or urine for a laboratory test . . .
11 . . . (3) A person does not cooperate with a preliminary test or provide a specimen of breath for analysis unless his cooperation or the specimen --
(a) is sufficient to enable the test or the analysis to be carried out, and
(b) is provided in such a way as to enable the objective of the test or analysis to be satisfactorily achieved."
"Where a device produces an instrument message of . . . 'ambient fail' . . . this may indicate alcohol or some other substance in the environment. Whilst the instrument may be operating correctly it will not allow the test to continue. In these circumstances it will be usual to proceed to a requirement for blood or urine under section 7(3)(b) of the Road Traffic Act 1988."
I note that it would be possible to proceed to a blood or urine test under section 7(3)(b) only if a reliable device is not available. It seems to me that this is an indication that a device which gives this message is not to be regarded as a reliable device.