bjcc
Valiant effort, but I suspect you're wasting your time. There's no realistic prospect he's going to accept he misunderstands the law or is wrong about the procedures however many times we explain.
Warning:
I haven't got the time or inclination to enter into a p***ing contest about urine with BlackSword. Be warned that his posts are riddled with inaccuracies which, if you accepted them, might make your position worse.
A few examples taken at random:
The legislation makes it an absolute offence to have drugs or alcohol in your body
Wrong. It does not.
If you are tested positive, then you are guilty of a criminal offence and there is no defence.
Wrong. You may have a defence, It depends upon the facts. It would take too long to go through all the variables.
any airline that did not report "unfit" flight crew could be considered guilty of conspiracy.
Wrong. eg Sending you home without calling the police would not amount to conspiracy or any other offence.
‘Drugs’ are not effectively defined in the legislation.
A matter of opinion. The Act states that the terms ‘drugs’ includes any intoxicant except alcohol which is dealt with separately. (As bjcc has pointed out, the legislation isn't confined to illegal drugs.)
No "cutoff" levels (for drugs) are set.
Correct. The fact that BS considers they should be is another illustration of his misunderstanding of the different nature of the two offences.
The breath test on its own is not currently sufficient evidence to convict - so corrobating evidence in the form of a blood test is necessary.
Wrong. The result of the evidential breath-test machine at the police station is sufficient. No corroborating evidence is required.
In relation to traffic offences, blood/alcohol is generally relied upon.
Wrong. The evidential breath-test is generally relied on.
although there are certified breath test machines too.
Indeed there are, and the results are the sole evidence relied upon in the vast majority of cases.
Urine is not (these days) used - a blood sample is required.
Wrong. (See 'Procedure' below.)
Individuals are entitled to have recourse to testing for Defence purposes.
If (big 'If' - see below) the police ask for and obtain a specimen of blood or urine, you will be given part of the specimen for independent analysis.
In most cases the result of the evidential breath-testing device will bring the procedure to an end. You will be released or charged depending upon the result. (See below for the procedure if the result is 'over' but only just.)
There is no procedure (for obvious reasons) for providing you with part of the specimen of breath for independent analysis.
The evidential breath-test machines are Home Office approved, regularly tested for reliability/accuracy and there is a presumption that the machine has produced accurate results. It is very difficult, but not impossible, to rebut that presumption.
Procedure
I dealt with this earlier, but will repeat it (with additions) because of the recent inaccurate and potentially confusing contributions.
If the (preliminary) roadside test is positive, or you refuse, or can't give the necessary sample?
You will be arrested and taken to a police station.
At the police station you will usually be asked to provide two specimens of breath for analysis on another machine (commonly a Lion Intoximeter).
If the two readings differ then the police must rely on the lower reading.
If the lower reading is over the prescribed limit you will be charged. (See 'just over' below)
You do not have a right to insist on supplying a sample of blood or urine instead of breath.
If you fail to supply a breath specimen at the station you will committ an offence, unless you have a reasonable excuse. Being too drunk or unfit to supply the necessary breath specimen is not a reasonable excuse.
A medical condition which prevents you from supplying enough breath for the machine to sample may be a sufficient excuse. If you have such a condition you must advise the police at the time.
The police are entitled to request that you provide a specimen of blood or urine as an alternative to a breath test, if:
no automatic measuring device is available at the time of your arrest;
it's not working properly;
a doctor advises the police that your condition may be due to drugs; or
the police have reasonable cause to believe that breath samples should not be requested for health reasons.
What if the reading provided by the evidential breath-testing machine is over the prescribed limit but only just?
Being 'just over' is sufficient for the offence. However, if the breath reading is 50 micrograms or less, then you mustbe offered the option of providing a specimen of blood or urine.
If the police don't offer you this option you'll have a defence to the charge.
You should be asked which you would prefer (blood or urine), but it is up to the police which one they offer you, unless you have a medical condition which would preclude you from providing the necessary sample.
The police cannot take a blood sample without your consent but, if this is the option offered and you refuse to consent, the police can rely on the breath sample they have taken.
If the police ask you to provide urine, you are required to provide two samples within an hour. You have a right to have the second sample taken and you should do so.
If you are asked to provide blood, this must be taken by a police surgeon who will have to be called to the station.
Tudor Owen
Last edited by Flying Lawyer; 11th Jan 2004 at 19:37.