Source: All England Reporter
Publisher Citation: [2008] All ER (D) 259 (Jan)
Court: Queen's Bench Division, Divisional Court

Maurice Kay LJ and Walker J

Representation Nigel Ley (instructed by Bird & Co Solicitors) for the defendant.
  Hale Ewing (instructed by the Crown Prosecution Service) for the prosecution.
Judgment Dates: 30 January 2008


Road traffic - Breath test - Failure to provide specimen - Specimens for analysis on approved device - Police constable requesting defendant to undertake breath test - Defendant refusing to provide appropriate sample - Defendant convicted of road traffic offence - Whether defendant providing lawful sample - , .

The Case

An appeal by way of case stated against a decision of a judge dismissing the defendant's appeal against a conviction of failing to provide, without reasonable excuse, a specimen of breath when required to do so was dismissed, where the defendant had been properly instructed on how to use an intoxilyser, and where he had deliberately failed to comply with the instructions and had deliberately frustrated the objectives of providing a specimen of breath for an analysis. In those circumstances, the judge had been correct in finding that the specimen was not sufficient to enable the test or analysis to be carried out or the objective to be satisfactorily achieved.

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