Man who burped at police has drink-drive ban overturned

Apr 29 2008 Liverpool Daily Post

breath test

A MOTORIST from Runcorn has had his drink-driving conviction overturned at the High Court yesterday – after top judges decided police were wrong to assume a burp made his breathalyser reading unreliable.

In a case with implications for many other drink-driving cases, Mr Justice Underhill ruled police should not have taken a blood sample from Ryan McNeil following his breath test two years ago.

Mr McNeil, of Stockham Close, Runcorn, was pulled over and breathalysed at the side of the road in Runcorn, on November 3, 2006 – and police arrested him on suspicion of drink-driving.

Two further Intoximeter tests at the police station gave negative readings, but when police found he had burped just before the second test, they decided to take a sample of blood, which prosecutors argued could be used as evidence that he was over the limit.

Mr McNeil was convicted of driving with excess alcohol at Halton Magistrates Court in June, 2007, and banned.

Until a test case last year, it had been assumed burping, or bringing something up from the stomach, could affect a breath test, meaning police could carry out blood or urine tests as an alternative.

But yesterday’s judgment means that, if a motorist now burps just prior to a breath test, his breath sample will still be viewed as valid in the eyes of the law.

Mr Justice Underhill also ruled that, because the police officer believed the Intoxi-meter was working correctly, he could not legally go on to take a blood sample.

Nigel Ley, representing Mr McNeil, said: “As far as the officer was concerned, there was nothing about the mach-ine which suggested unrelia-bility. There was a presump-tion the machine was working correctly”.

Mr Justice Underhill, sit-ting with Lord Justice Latham, said: “It may, at first sight, be correct to say that there was a reasonable case for the police officer’s belief”.

But he said it was argued that a form, laying down breath testing procedures at the police station, “incorpor-ates a view of the law which has been shown to be wrong”.

“It is now stated, a speci-men of breath affected by reflux or regurgitation from the stomach is to be treated as breath,” the judge added.

“No blame is attached to the officer for following the proce-dure on the form, but the fact remains he thought he had to believe that the breath sam-ples produced by the intoxi-meter did not give a reliable indication of the amount of alcohol in Mr McNeil’s breath. This was not in law capable of rendering that indication unreliable.”

As a result the judge upheld Mr McNeil’s appeal.