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The recent Divisional Court decision in Charles and Others May 1994 (unreported) has resurrected the ghost of the statutory option conundrum, which Parliament and the courts had thought was laid to rest.
After years of ingenious defences to drink driving charges, the Transport Act 1981 aimed to make it more difficult to get off by way of silly technical defences.
However, in order to temper the effect of this legislation, the Road Traffic Act 1988 was passed.
This act "provided a procedure which the police were required to follow" (Pill J. in Wareing v DPP(1990)).
Under sections 8 (2) and 7 (4) of the act, where the lower specimen of breath is no more than 50mg of alcohol in 100ml of breath, a specimen of blood or urine may be required. Which of the two is determined by the constable unless a medical practitioner indicates that a specimen of blood cannot be taken.
The apparent clarity of the legislation was undermined in a succession of challenges, culminating in Lord Justice Watson's remark to counsel, "Not another new defence" (Renshaw v DPP (1992) RTR 186). The uncertainty resulted partly from disparate wording in the pro-forma guidelines used by various police forces and inconsistent judicial decisions.
Basic principles were also established in several landmark cases. These include DPP v Warren (1992), where the House of Lords overruled the Divisional Court and Lord Bridge prescribed five essential elements.
These criteria are unequivocal and should have introduced the required clarity. However, Warren was considered by the Divisional Court in May 1994 in Charles and Others (unreported).
While stressing the desirability of compliance with these five points and statutory provisions, Lord Justice Kennedy also noted Parliament's intention of enabling a motorist to provide a replacement specimen when he faces conviction on the basis of a specimen already provided.
He stated that these provisions are not to operate as a series of hazards which could result in the guilty escaping conviction. He concluded, therefore that failure to comply with each provision will not necessarily be fatal.
Clarification is again needed from the Lords.
Nicholas Freeman, is a road traffic specialist and partner with Burton Copeland.