Scottish High Court of Justiciary Decisons

"1) The Appellant, who lives at 86 Earlston Road, Stow, has suffered from

2) The Appellant's house is situated near the top of the hill coming out of

3) On 2^nd November 2001, the Appellant at about 4.00pm drove her red

4) At about 4.15pm when the Appellant reached the Earlston Road

5) Mr Nicholson formed the view that the driver of the car was under the

6) As a result of the information supplied by Mr Nicholson the police

7) At about 1645 hours the two police officers, having obtained

8) When the police arrived at the Appellant's house and she answered the

9) After the Appellant had provided a positive breath test she was asked

10) Neither police officer recalled seeing a half empty glass of wine in the

11) After the completion of the drink driving procedure, when the

12) When the Appellant's husband, Mr George Rawlings, returned to the

13) There was no evidence that any other persons had entered the house at

14) The distance from the village of Stow to Galashiels is approximately 8

15) Defence production no. 1 was a report prepared by Professor J K

16) The neither the Appellant or Mr George Rawlings has any previous

"It is clear that shortly before 6.00pm the intoximeter measured the level of alcohol in the Appellant's breath at approximately three times the statutory maximum. It is admitted that the Appellant was driving her motor vehicle at 4.15pm in Earlston Road, Stow. There is, therefore, a presumption that the level of alcohol found by the intoximeter is the level of alcohol the Appellant had when driving. (Section 15(2) Road Traffic Offenders Act, 1988) That presumption can be rebutted by evidence which establishes on the balance of probability that that was not the case. (Section 15(3) Road Traffic Offenders Act, 1988) In this case the Appellant sought to persuade me that the level of alcohol found by the intoximeter was, to a very large extent due to the amount of wine she had drunk between the time she returned home at 4.15pm and the time the police arrived at 4.45pm. The only direct evidence relating to the amount of alcohol consumed by the Appellant during this half hour period is her own. She claimed in evidence that having drunk two fairly large glasses of wine at lunch time totalling approximately 30cl she decided about 4.00pm, some 21/2 hours after she had drunk the two glasses at lunch time, to go down to the local shop to buy a bottle of white wine. She claimed that she intended to replace in the bottle she had emptied at lunch time the amount that she had drunk at lunch time so that her husband would not know that she had been drinking wine. She said that he would disapprove because she ought not to drink wine, particularly on an empty stomach, because of her ME condition and associated medication. The Appellant claimed that having bought her bottle of wine she returned home and poured approximately two glasses into the bottle she had emptied at lunch time using a funnel. She then wondered what to do with the approximate ³/₅ of a bottle of wine remaining in the new bottle, so she drank it. She thought it was probably before then that she had also drunk the remains of a bottle of red wine amounting to one glass. Her evidence was somewhat confused as to how much, if any, she drank from the bottle into which she had poured two glasses through a funnel. All of this, the Appellant would have me believe, took place within a period of not more than half an hour, during which time she also lit the fire in her house.

I was wholly unconvinced by the way the Appellant gave her evidence and became even more unconvinced when her evidence is compared to that of the other witnesses in the case."

"In the application for a stated case stress is laid upon the unchallenged evidence of the Appellant's husband, Mr Rawlings. In my view that does not assist the Appellant in any way. All that Mr Rawlings said was that when he got home at about 6.00pm - 6.15pm he saw a half glass of wine on the table; the fire was burning brightly; in the kitchen was a bottle with a funnel in the neck which contained not more than a glass of wine; some wine had been spilt on the top. It appeared to be white wine that had been spilt. In my view that evidence did nothing to assist the Appellant establish that she had drunk substantial quantities of wine after she returned home. Indeed the fact that some wine had been spilt, apparently when trying to put some into the bottle with a funnel in its neck, suggests that when she was doing that she was under the influence of alcohol."

" I have been asked by Messrs Burnett Christie of Edinburgh to prepare a report on Ms Scott's alcoholic intake as related to a vehicular incident. In making my calculations, I have relied in large measure on the Tables supplied by the British Medical Association in 1960. These Tables, admittedly, refer to a theoretical situation but they are as good as any available and they have been widely used in and accepted by the Court. Moreover, they have judicial approval (R v. Somers [1963] 3 All ER 808). There are, however, some things which we cannot know in a biological situation. In particular, we do not know how the accused absorbs alcohol, nor do we know how she metabolises it (breaks it down in the body); for that latter purpose I have used the generally accepted most likely value of 6.5 ug alcohol/100 ml breath/hour.

My calculations and conclusions follow the methodology I have published previously (see now Wheatley's Road Traffic Law in Scotland (3rd ed., 2000) Appendix E).

The circumstances as I am instructed were that, starting at 1330 on 2^nd November 2001, Ms Scott drank 300 ml (10.6 fl oz) white wine which, in the absence of positive information, I have assumed to have been 11.5% alcohol v/v. She was involved in a road traffic incident at 1615. She began to drink almost immediately and, between then and about 1715 when the police arrived, drank a 150 ml (5.3 fl oz) glass of red wine (assumed to be 12% alcohol v/v) and 3/4 bottle of wine (562 ml = 19.8 fl oz, assumed 11.5% alcohol v/v). A definitive breathanalysis taken at 1800 gave a reading of 107 ug alcohol/100 ml.

Ms Scott's weight is given as 123 lbs. A correction factor of 1.25 has, therefore, been used when reading the tables."

"Conclusion

Assuming the facts to have been as stated, the calculations indicate that, had Ms Scott not drunk after the incident, her breath alcohol level would not have exceeded the prescribed limit. The conditions of Road Traffic Offenders Act 1988, s.15(3)(b) are, therefore, satisfied.

Following the ingestion of the post-incident drink, the pre-incident would have been metabolised for 1.25 hours at a differential rate of 6.5 x 19/107 = a further 1 ug giving a net contribution to the Intoximeter result of 18 ug.

It will then be seen that the observed result differs from the calculated result by 107 - (18 + 81) = 8 ug. Taking all things into consideration, this is a remarkably good correlation and could be taken as supporting evidence that we are in the right area."

"5.-(1) If a person -

after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit he is guilty of an offence."

" (2) Evidence of the proportion of alcohol or any drug in a specimen of breath, blood or urine provided by the accused shall, in all cases, 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) If the proceedings are for an offence under section 5 of [the Road Traffic Act 1988] ... that assumption shall not be made if the accused proves-

"Question 1

I did not reject the expert evidence of Professor Mason. Parties had entered into a joint minute stating, amongst other things, that Professor Mason's report 'is true and accurate in terms of its calculations and conclusions' and that the report is based on facts and information provided to Professor Mason by the Appellant. In his report Professor Mason makes it clear that he proceeds upon the assumption that the facts stated to him which are set out in his report are correct. ... [After giving further details relating to the content of the professor's report, the sheriff continued:] Professor Mason makes it clear that he has to make assumptions, for example, about the rate of absorption and other matters of that kind as set out in his report and concludes that 'taking all things into consideration, this is a remarkably good correlation and could be taken as supporting evidence that we are in the right area'.

If the Appellant had established on the balance of probabilities that she had drunk after the incident at 1615 hours approximately the amounts of alcohol she claimed to have drunk then clearly Professor Mason's report would establish that drinking that amount of alcohol after the incident was consistent with the intoximeter reading obtained about 6.00pm. What Professor Mason does not do, however, is to say that drinking the better part in total of a bottle of wine in the period immediately after 1615 hours is the only way in which the unchallenged intoximeter reading of 107 could be obtained. It is clear from what Professor Mason says in the body of his report and also from common experience that a particular result of an intoximeter test could be accounted for in a number of ways. It can be accounted for by drinking some hours before the intoximeter test. Indeed it is not uncommon for people to have substantial readings 12 hours or so after they stop drinking. It is clear from Professor Mason's report that after the alcohol has been absorbed into the system, it is gradually reduced but the rate of reduction is relatively slow. Professor Mason was not asked to express a view as to whether the accepted intoximeter reading of 107 could have been the result of a substantial quantity of alcohol being consumed before 1615 hours. It seems plain to me, both from the terms of Professor Mason's report and from the other matters to which I have referred, that the reading of 107 is quite consistent with a substantial quantity of alcohol having been taken before 1615 hours when the incident to which Mr Nicholson speaks occurred. ...

Question 2

The two police officers who went to the house were Constable Welsh, who was the reporting officer, and Constable Hazle. Both officers spoke to receiving a call at, they thought, about 4.00pm, to go to the Appellant's house and investigate an alleged drunk driving incident. Constable Welsh said that at the time they were on uniform patrol. He was not asked and did not say whereabouts they were. Constable Hazle said that he didn't remember where they were when they got the call. Constable Welsh said they arrived outside the Appellant's house about 1640 hours, Constable Hazle thought they arrived about 1630 hours. ... I saw no reason to doubt the evidence given by the two police officers regarding the time they arrived outside the house (1440 [sic] hours), the time they entered the house (about 1445 [sic] hours) or what happened in the house.

Question 3

Neither police officer was asked the time that they left the house with the Appellant after arresting her. They were not asked how long the journey in fact took to Galashiels Police Office. Constable Welsh estimated the distance at about five miles, whereas Constable Hazle thought it was seven to eight miles. There was no evidence about the time of arrival at Galashiels Police Office. There was evidence to the effect that the 'booking in' procedure took about 20 minutes. There was also evidence from Constable Welsh that he had forgotten his code for getting access to enable him to operate the intoximeter machine and there was some delay while he got a new code number for that purpose. It is clear from the agreed production 1 for the Crown that the start time of the actual procedure was 1754 hours.

There were a number of discrepancies between the evidence of the two principal police witnesses, Constables Welsh and Hazle. ... [The sheriff then listed nine discrepancies. For present purposes, the most relevant were the following:]

In all other respects the evidence of the two officers was fully compatible one with another. At the time of the trial I did not take the view that such differences as there were in their accounts of what happened were significant. From the way they gave their evidence I saw no reason not to accept it."