Drink driving charge dismissed after ‘inept’ breath test by police

November 8, 2019

A 76 year old Coober Pedy resident with no previous offences has had his conviction for ‘drink-driving’ set aside in the Supreme Court after it was found that the magistrate who heard the trial put too much significance on the result of an alcohol screening test, and the driver’s behaviour was consistent with his claim that he was simply tired.

After a charge of failing to comply with a breath analysis test was withdrawn by police because of the ‘inept manner in which the procedure was conducted by the officer’, police still proceeded with a charge of driving under the influence of liquor despite not having a blood alcohol reading to rely upon.

The case shows the difference between the charges of ‘driving under the influence (DUI)’ and ‘driving with the prescribed concentration of alcohol (PCA)’ and also how an alcotest can’t be used to prove a driver’s blood alcohol concentration.

Driving Under the Influence Charge

The police officer’s account was that while following a Mercedes-Benz just outside of Coober Pedy he saw it drift to the right and cross the centre line with the right wheels.  The driver then corrected but then directed the car to the left-hand edge of the road while going around a right-hand bend kicking up stones.  The car then corrected to the right and nearly hit a concrete raised strip.  He said that he saw the driver reach for the seatbelt and then he used his police lights to cause the driver to stop.  The officer said that when the driver got out of the car he appeared to stumble and seemed unaware that his car was partially blocking the road.  The officer stopped the police car behind the Mercedes and the driver walked towards him nearly in the centre of the road.  The driver was said to be unsteady on his feet, his eyes appeared bloodshot and he smelt strongly of liquor.

Within a couple of minutes the police officer had the driver submit to an alcotest which gave a ‘positive’ result and displayed a reading of 0.162.  The driver was then taken to the Coober Pedy Police Station for a Breath Analysis.  During the test the driver blew into the apparatus several times but no reading of any blood alcohol content was recorded.

Interestingly, the whole procedure was recorded on videotape.  At all times the driver claimed that he had drunk only one 350ml bottle of light beer.  The recording showed him to be cooperative and sensible and the Court noted that the recording which was made very soon after he had been driving didn’t appear to suggest that he was in any way affected by alcohol.  In fact, ‘the overwhelming impression’ was that he was ‘quite sober’.

Fail to Comply with Breath Analysis Charge

The charge of failure to comply with the breath analysis test was withdrawn on the basis that it was a ‘failure to comply by police.’

The procedure was recorded on video although the police were initially resistant to producing the video to the Court.  What it disclosed was quite remarkable and made it clear why the police didn’t go ahead with the charge of failing to comply with the breath analysis.  The officer directed the driver to blow into the device but after a few seconds told the driver to stop blowing, stating that he was not doing so correctly but without explaining how he was blowing incorrectly.  There was a second attempt to blow and after just two seconds the officer pulled the mouthpiece away.  He then warned the driver that it is an offence to fail to provide a breath sample without good cause and said, “If you do not blow, you will lose your licence for 12 months,” and, “If you fail to comply with this, you lose your licence and you lose your car.”  He then said, “This is your last chance.  Your car will go if you do not comply.”

On the third attempt the driver blew for just over a second before the pipe was removed from his mouth by the officer without warning and while the driver was still blowing.  The man was then charged with failing to comply with the breath analysis.  However, the police later withdrew that charge after an internal review.  The Court stated that was the only responsible decision to take, given that the recording showed that the officer’s manner toward the driver was, “in the most charitable words, curt and unhelpful; and his attempted administration of the test was inept.”  The driver was not afforded the requisite opportunity to provide the two breath samples needed to provide a reliable result.

So without the result of a breath analysis test how could the charge go ahead?

The driver wasn’t charged with being over the legal limit, but with driving while under the influence of intoxicating liquor.  Technically, you can be affected by the alcohol you’ve had to drink even if you’re under the limit and these are two different charges.  The problem was that the man claimed the reason who drove in the manner observed by police was because he was tired and not because he’d been drinking.

His evidence was that he was particularly tired at the time of driving.  Although 75 years old, he’d been running the local caravan park and at the same time a pizza business and was building a large underground residence.  He had gone to bed at 11.00 pm the previous evening and got up at 6.30 am that day but had little sleep because he’d had to get up to attend to arrivals and departures at the caravan park.  He worked at the park until midday then went to the location of the new dugout where he operated a grader for some time before deciding to go home.  Just before leaving he had one 350ml light beer and it was on the way home that he was stopped by police.

The man didn’t really dispute what the police officer said happened while he was driving, but said that this was because he was very tired and wasn’t paying much particular attention.  He denied that he was unsteady on his feet.

The Magistrate who first heard the trial seemed to rely on the result of the alcotest at the scene and concluded that the driver must be mistaken about how much he had to drink.  He found him guilty of driving under the influence of intoxicating liquor and imposed a fine of $1,100 and disqualified him from driving for twelve months.   The driver appealed that decision and the Supreme Court looked carefully at whether the blood alcohol reading that that alcotest recorded had any significance.

What is ‘mouth alcohol’?

The case involves a thorough review of the process of alcohol breath testing.  The Court noted that a breath analysing instrument (or BA machine) is designed to analyse only ‘alveolar air’.  That means, the air that comes from the sacs deep in the lung because that air is right next to the lung tissue and is in a continuous state of cross-transference with the alcohol in the blood.  It’s for this reason that a breath analysis involves the subject giving one long continuous breath into the instrument, because it is only the last of that air (the alveolar air) that is captured for testing by the machine.

As this case demonstrates, the problem that can occur involves residual alcohol in the mouth if a test is taken shortly after alcohol has been consumed.  This is alcohol that is absorbed into the mucous linings of the mouth, the tongue, saliva and can also be trapped behind dentures.  It takes time for this mouth alcohol to be washed away by the saliva and if it is present it can result in an incorrect reading.  For this reason the practice is to wait at least 15 minutes from the time the subject last had a drink before a breath test is undertaken.  The operating manual for the BA machines currently in use state that it is ‘essential to allow at least 15 minutes from the last intake of alcohol’ as well after the use of mouth sprays, lozenge medications containing alcohol, medications applied by aerosol, and after vomiting or belching.  SA Police have established a procedure of waiting 20 minutes to ensure that the test is effective.

What is the Alcotest for?

The need to wait 20 minutes to conduct a breath analysis and the time and effort that the test takes would make it impractical for police to require every driver they want to check to undergo the BA procedure.  For that reason an ‘alcotest’ can first be conducted which is a portable ‘screening test’ to see if a driver might be over the legal limit.  Although a positive alcotest indicates that there is a reasonable likelihood that the driver is over the legal limit, the result can’t be used to prove that fact and police must then rely on the results obtained from a breath analysis instrument.

If police are using their random testing powers then a driver can’t be required to submit to a breath analysis unless there has been a positive alcotest.  In certain prescribed circumstances however, such as when police believe on reasonable grounds that a driver has behaved a manner indicating their ability to drive is impaired, an alcotest is not a requirement.  In fact, it is usually accepted that if a police officer suspects a driver to be under the influence then an alcotest won’t be conducted since there is no need to ‘check’ whether the driver might be over the limit.

The Supreme Court concluded that the Magistrate who heard the trial incorrectly placed significance on the reading obtained by the alcotest.  Rather than simply accepting that there was a ‘positive result’ and therefore the driver might have been over the limit, the Magistrate considered that there was in fact a reading of 0.162% because that is the result that the alcotest gave.  For the reasons outlined above, however, it wasn’t correct to draw that conclusion.

The Outcome

Since the alcotest result could do nothing more than indicate that the driver might have been over the limit, and his manner of driving could be explained by the fact that he was tired, the Court could not be satisfied beyond reasonable doubt that he was driving under the influence and the charge was dismissed.

Another fact that was of concern to the Court was the failure to call another police officer who was present during the breath testing procedure to give evidence of his observations of the driver.  The police claimed that we was clearly under the influence of intoxicating liquor, and that other officer would have been able to say whether the driver had been ‘unsteady on his feet’ as had been alleged.  The failure to call this witness wasn’t explained.

A comment by one expert author quoted by the Court in this case remains very relevant.  In referring to the general sophistication of the breath analysis process it was stated that in spite of this sophistication, “a good quality assurance program will still include … well-informed legal representatives who can recognise problems that have eluded the system in spite of quality assurance programs …”

As this case shows, just because a person is charged with a drink driving offence doesn’t mean that they are guilty. The laws relating to drink driving are complicated and anyone facing a charge of driving under the influence, driving with the prescribed concentration of alcohol or refusing or failing to comply with a breath analysis test should get expert advice as soon as possible.  Websters Lawyers have experienced specialist traffic and criminal lawyers available to assist and offer a free initial consultation to help you make the right decision about how to handle these types of charges.

Athanasiadis v Police [2019] SADC 176