Breath test loophole

Press, Volume CXI, Issue 32566, 27 March 1971, Page 19

Breath test loophole

(N.Z. Press Assn'.—Copyright) LONDON, March 26. A wide loophole in Britain’s breathalyser law which allows the “hip-flask driver” to escape has been confirmed by the House of Lords, the “Daily Telegraph” reported.

By a four-to-one majority, the Lords decided that a motorist who drinks after he stops driving but before he takes the breathalyser tests, cannot be convicted on the evidence of those tests. The decision means that a motorist can invalidate the worth of any subsequent blood or urine test if he manages to have a drink in a bar, or takes a swig from a hipflask after an accident, or after being stopped by the police. The loophole was opened by a motorist, Mr John Hamilton, aged 25, an Ampthill, Bedfordshire, plumbing contractor, who was so shaken by an accident that he went into the nearest public house and had three whiskies.

A breathalyser test showed positive, and laboratory tests later showed that he had 159 m'lligratns of alcohol per mililtres of blood. Mr Hamilton was convicted at his trial, a forensic .expert having said that the defendant would still have been above the prescribed limit even if he had not had the whiskies. But the conviction was quashed by the Court of Appeals, and the House of Lords upheld its decision. In the House, Viscount Dilhome said that the laboratory test had showed the proportion of alcohol in the blood at the time the specimen was provided; it could not show the amount Mr Hamilton had consumed before the accident. “It must be left to Parliament to legislate to close the gap if it wishes,” he added. “But even if the appeal had been allowed, it would not entirely close the loophole, because it would not be possible in every case to establish with certainty how much a driver had drunk after he had stopped driving.” Lord Guest said it had been submitted that unless

Mr Hamilton was convicted, it would leave a loophole m the act through which the “hipflask driver” could escape. “This may be so, but if the act is not watertight then it is for Parliament, and not for the courts, to supply the omission,” he said. Lord Pearson, who dissented, said that the result of the ruling would be the absurdity that drivers could always defeat the law and escape a just conviction by consuming alcohol before giving a specimen for analysis. The “Daily Mail” reports that senior police officers and Government departments will make urgent moves to seal the loophole. A Law Society official commented: “There is a difference between a motorist taking a drink for medicinal reasons, such as if he is suffering a state of shock, and one who deliberately drinks to avoid a possible conviction.”

To counter those who deliberately drink he would recommend making it a mandatory offence to do so. [N.Z. Reaction, Page 20 J