This is the most complicated defence and requires expert representation.
|There is a whole list of potential defences relating to the drink drive procedure. The police follow a form called an MGDD A. This is meant to be an idiot proof guide but some mistakes still slip in.
Most of the time the breath procedure is carried out properly, the mistakes come when the police have the option of giving a blood or urine test.
The first thing to check with the breath test is that the 2 readings are within 15% of each other. If they are not then that is an indication that the machine is not working properly. The modern machines should alert the operator if the 2 readings are more than 15% apart.
When the reading is between 40 and 50 mgs in breath then the police have to offer a blood or urine test. It is up to the police to decide which and they normally go for blood.
There are only 5 situations where the police can ask for a blood or urine sample -
1. The constable making the requirement has reasonable cause to believe that for medical reasons a specimen of breath cannot be provided or should not be required, or
2. Specimens of breath have not been provided elsewhere and at the time the requirement is made a device or a reliable device is not available at the police station or it is then for any other reason not practicable to use such a device there, or
3. A device has been used (at the police station or elsewhere) but the constable who required the specimens of breath has reasonable cause to believe that the device has not produced a reliable indication of the proportion of alcohol in the breath of the person concerned, or
4. As a result of the administration of a preliminary drug test, the constable making the requirement has reasonable cause to believe that the person required to provide a specimen of blood or urine has a drug in his body, or
5. The suspected offence is one under section 3A or 4 of this Act and the constable making the requirement has been advised by a medical practitioner that the condition of the person required to provide the specimen might be due to some drug;
If the police ask for a blood or urine test under any other circumstances then this will provide a defence. There are too many to name but for example if the police officer does not believe that there are medical reasons for failing to provide a breath test but decides to give the defendant the benefit of the doubt this can be a defence.
The urine test is often taken incorrectly. The law states that the police have to take 2 samples, the first has to be discarded and the second is to be split into 2 and 2 of the samples provided to the defendant. We have dealt with numerous cases where the police take one sample and split it into 2 and throw one away. This is wrong and provides a complete defence. The purpose of this law is that the sample should be an accurate sample. If the first sample is used then this includes a higher than normal percentage of alcohol since the body will have removed most of the alcohol and stored it in the bladder. The second sample gives a more accurate sample.
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