R v Goodwill

• Jurisdiction: Cayman Islands
• Judge: (Allen, Ag. Magistrate)
• Judgment Date: 03 August 1983
• Date: 03 August 1983
• Court: Summary Court (Cayman Islands)

Summary Court

(Allen, Ag. Magistrate)

R.

and

GOODWILL

R. W. Ground, Crown Counsel, for the Crown;

R.D. Alberga, Q.C. for the accused.

Legislation construed:

Traffic Law (Law 16 of 1973), s.61(b): The relevant terms of this section are set out at page 383, lines 17.

s.62(2), as substituted by Traffic (Amendment) Law, 1981 (Law 4 of 1981), s.4: The relevant terms of this sub-section are set out at page 383, lines 1419.

(4): The relevant terms of this sub-section are set out at page 383, line 38 page 384, line 2.

(10)(a), as amended by the Traffic (Amendment) Law, 1983 (Law 2 of 1983), s.2: The relevant terms of this sub-section are set out at page 384, line 39 page 385, line 4.

Road Traffic-driving under influence of drink-breath test-no legal duty to follow manufacturers instructions concerning calibration of breath measuring device, or cleansing and resetting before second test, but failure to do so in appropriate circumstances casts doubt on accuracy of reading

Road Traffic-driving under influence of drink-breath test-inconsistent evidence-evidence of accuseds proved behaviour at time of test may negative excessive breath alcohol reading if inconsistent in light of medical evidence-may back-date reading, on basis of medical evidence of alcohol metabolism rate, to determine alcohol level at time of offence two hours earlier

The accused was charged, inter alia, with driving while intoxicated, contrary to s.61(b) of the Traffic Law.

The accused was arrested on suspicion of driving while intoxicated and was asked to give a specimen of his breath in accordance with the procedure laid down in s.62 of the Traffic Law, as amended. The court accepted that the alcohol-in-breath measuring device used by the police was of a type approved in the Traffic (Prescription of Measuring Device) Order, 1981.

The accused gave two breath specimens, the second after the supervising police officer had declared the first to be unsatisfactory because the warning light on the measuring device had not been activated. The accused maintained that a reading had nevertheless been obtained on the device from the first specimen. It was common ground that the device was not air-cleaned or reset to zero before the taking of the second specimen, although this was required by the manufacturers operating instructions and its desirability, when a reading is registered, was supported by expert evidence. It was on the basis of the second specimen, taken more than two hours after the accused had been arrested, that he was charged.

He submitted in his defence that the prima facie accuracy of the police certificate stating the results of the tests was rebutted because (a) the reading on the Intoxilyzer was either inadmissible or inaccurate since there was no evidence that the measuring device in question had been calibrated despite frequent use; (b) the second reading taken was imprecise since the device had not been air-cleaned and reset to zero before being used the second time; and (c) the evidence of his behaviour at the time of the testing was, according to an expert medical witness, inconsistent with the quantity of alcohol which would have had to have been in his bloodstream at the time of the alleged offence two hours previously.

Held, dismissing the charge:

(1) The evidence obtained from the use of the breath measuring device in this particular case was unsatisfactory, since there was no evidence that it had ever been properly calibrated, or re-calibrated after frequent use, in accordance with the manufacturers instructions and its recommendation that it be done regularly. Similarly, though it was not clear on the facts that this had been necessary, the manufacturers operating instructions regarding the air-cleaning and resetting of the device to zero before the taking of a second specimen had not been followed. In neither case was there a legal requirement that the manufacturers instructions be followed-the amendment to s.62(10)(a) of the Traffic Law which prescribed this was not in force at the time of the offence-but the scientific evidence clearly showed that these procedures were desirable and that failure to comply with them might affect the accuracy of the measurement (page 384, line 35 page 385, line 15; page 387, lines 137).

(2) Moreover, on the basis of the medical evidence of the rate at which alcohol was metabolised, the reading on the Intoxilyzer suggested that on either of two hypotheses the offence might not have been committed-first, the accuseds proved behaviour at the time of the test was inconsistent with his having had such a high level of alcohol in his bloodstream two hours earlier, and secondly, if the reading were accurate, the alcohol level at the time of the offence would have been lower than the statutory limit. In either case, there was a clear doubt whether the offence had been committed and the charge would be dismissed (page 389, line 3 page 390, line 12).

ALLEN, Ag. MAGISTRATE: At the close of the prosecutions
case on the charge of careless driving, I agreed with defence
counsel, Mr. Ramon Alberga, that there was no case for the
accused to answer and accordingly dismissed that charge.
40	The defendant is also charged with an offence under s.61(b) of
the Traffic Law which reads:

Whoever drives or attempts to drive or is in charge of a
vehicle on or in a road when . . .
. . .
(b) he has consumed alcohol in such a quantity that the
5	proportion thereof in his blood exceeds 100 milli-
grams of alcohol in 100 millilitres of blood shall be
guilty of an offence . . . .
Constable P. Ebanks arrested the defendant on suspicion of driv-
ing whilst intoxicated and required him to give a specimen of his
10	breath.
The procedure when a person is suspected of having committed
an offence against s.61 is set out fully in s.62 of the Traffic Law, as
amended in 1981. Section 62(2) now reads:
A person who has been arrested under subsection (1)
15	may while at a Police Station, Hospital or other convenient
place be required by a Constable-
(a) to provide a specimen of breath for a breath test by
an alcohol-in-breath measuring device prescribed
by the Governor . .
20	By the Traffic (Prescription of Measuring Device) Order, 1981,
the Governor in Council on April 14th, 1981 prescribed for the
purposes of s.62 of the Traffic Law-the Intoxilyzer manufac-
tured by CMI Incorporated, Minturn, Colorado in the United
States of America.
25	One of the submissions of defence counsel is that the machine
on which the breath test was carried out is not prescribed by law.
There

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