Legal i

Sorry Judge, I was too wasted to give a breath sample…

This is something that we are often asked about and it is certainly an issue that raises much debate. It’s an issue you might find to be a mix of both interesting and outrageous. 


It is common knowledge that if you are suspected of drink driving, you may be arrested and required to give a sample of breath. What some of you may not know, however, is that if you fail or are unable to give the breath sample, then this constitutes a separate offence of “Failing to provide a sample for analysis”. When this allegation is brought about, a defence exists, if it can be argued that the suspect had a “reasonable excuse” for the failure or inability to provide. 


A reasonable excuse is usually a “physical or mental inability to provide” the specimen, but ultimately, it is to be decided by the court. If someone is so intoxicated that they physically cannot provide a breath sample, should that amount to a reasonable excuse? 


A common argument to not provide breath is one based on “medical grounds”, which you would expect to relate to something physical, but where are the boundaries here? Does it have to be a medical condition? What would you think if we told you that it had previously been argued that a suspect should be found not guilty of failing to provide a breath sample because they were simply too drunk, and this should be counted as medical reasons? What if we told you this person was successful?


In a 1992 case between DPP v Young, the court had to consider this point. Ultimately, the court decided that yes, self-intoxication could fall under the “medical” bracket to permit a constable to require a sample of blood, and having not done that, Mr Young had a reasonable excuse.


Has the court gone mad?


This caused controversy with the general public. People hear “drink driving” and “not guilty because they were too drunk” and are obviously shocked. Whilst that isn’t what actually happened, that is how the general public perceive it, which raised serious concerns over the justice system. 


Eventually, a case went all the way up to The High Court to address this same issue and you may be pleased to hear that they arrived at a more logical conclusion on the question of: “Can someone be too drunk to provide a breath sample and argue that it is a reasonable excuse?” The term “reasonable excuse” is relatively vague and it has taken decades of case law to provide the courts with a degree of guidance and scope as to the types of arguments that can amount to a reasonable excuse. 


Mr Camp


In November 2015, Mr Camp was stopped by a police constable for driving erratically and was “obviously drunk” and had wet his own trousers.  The police officer gave evidence at trial to say that Mr Camp had tried to provide a sample of breath, but she believed that he was too drunk to do so. The reason given by the constable for the “incomplete procedure” suggested a physical inability. She told the court that Mr Camp had clearly been trying to blow and had been given several opportunities to provide a sample of breath. After arguments were made by both sides, the court decided that Mr Camp was not guilty, because he “had a reasonable excuse, and he was simply too drunk to provide”.


2017 – The Appeal


The Prosecution lodged an appeal and two specific questions were raised:


1. Could being so drunk be a reasonable excuse not to provide a breath sample? And;

2. Was the court right to find that the constable should have aborted the breath test procedure and opted for blood instead? The judgement was long, detailed and considered a range of legal issues and arguments (it is actually a rather interesting read), but we simply do not have the space to delve too deeply into it,  but a summary is as follows:

a. A “reasonable excuse” may include non-medical reasons.

b. In the 1992 case, the court found that the defendant was too drunk to understand the procedure.

c. The appeal Judge basically said it was against the intended purpose of the law (which is to protect the public) to find that a defendant was too drunk to provide a specimen, and that this should give him a reasonable excuse (a defence) to the allegation of failing to provide a specimen, at least “in the circumstances of this case”.


It would be a concerning position had the court decided that a defendant, who is so intoxicated that they can’t give a breath sample, could take advantage of a defence that would not be available to someone whose conduct had been more objectively “reasonable” and whose level of intoxication when they drove a vehicle was so great that they were just “too drunk”. That position would have provided a bizarre safety net and possibly encourage people to drink even more excessively, safe in the knowledge that if they are too drunk to provide a specimen, they cannot be found guilty of an offence. 


It seems highly unlikely that this was Parliament’s intention when enacting, much to everybody’s relief.

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