Is there still the blood test as a back up to the breath test?
I recall it always used to be option in cases of "marginal" breath tests. Perhaps it should be the case that if the driver wasn't sufficiently in doubt on their result at the time to insist on a blood test then the inaccurate Breathalyser machine defence is closed to them.
You only get a blood or urine option if you blow under 50 mcg/100ml breath. This chap blew 66.
"That alcohol came from somewhere"
Or, alternately, the machine was stuffed but it's self-checks didn't show it.
Whether or not that was the case here is not for me to say, but blindly relying on the accuracy of a machine whose methods of operation and possible failure modes are unknown to the court triggers my "whoa nelly!" instinct.
Machinery does fail despite the best efforts of the designers to prevent and detect failures, as any issue of the RISKS digest (http://en.wikipedia.org/wiki/RISKS_Digest) will gladly attest. Speed cameras have demonstrated a repeated ability to pass their diagnostics but still give false readings (not that I want to get into the whole speeding debate, but it is an example of machinery capable of failing undetectably, being used as evidence of an offence).
I've also been personally involved in a trial (as a witness, not a defendant!) where logs from an ordinary, every day computer system with little-to-no security or protection against tampering were used as evidence, and were ultimately admitted without any hint as to the ease with which they could have been (and indeed, possibly were) tampered with.
Magistrates and judges cannot all be technical experts, but this presumption of infallibility concerns me, because I *know* how fallible technical systems are. That people may be unjustly convicted (or unjustly acquitted) because of the mystique of a machine should be a worry to anyone with an interest in justice in this highly technological age.
Do you have any suggestions of ways in which technical professionals familiar with the issues could assist the court system, in general, in understanding the true capabilities and limitations of modern technology?
I second Mr. Palmer's concerns. Alcohol has to come from somewhere, but a reading does not. I think a blood test (at the defendant's expense) should always be allowed as a backup, because it is the gold standard for testing.
As a technology professional, I trust technology about as far as I can spit a rat. Just because something's displayed in glowing green LEDs doesn't make it true.
So you're using evidence from the breath machine as proof that the breath machine was working correctly. Huh. I agree with Matt, John, and Ben.
The SCC had some comments on this issue recently:
R. v. Boucher, 2005 SCC 72, at para. 43
http://www.canlii.org/en/ca/scc/.../
2005scc72.html
"..in which one of Their Lordships has dissented, saying that this would create a dangerous precedent,.."
Reminiscent of Lord Denning's comments about the West Midlands police?
I also work with technology in an investigative capacity, and am often concerned about how much people who do not understand machines put their faith in the technology. Non-technical people seem to erect a wall of ignorance to defend themselves against the necessity to investigate. The line of thought seems to be "I have no hope of understanding what is happening here, so I will cling onto what I am being told, and refuse to think any deeper. Otherwise, I will expose my ignorance..".
Currently, there are several issues of this type where the world is digging a huge hole for itself. Biometrics is one, Global Warming is another..
I am rather surprised that a confirming blood/ urine test is not allowed, when the breath test shows a high reading.
As far as I am aware, athletes subjected to drugs testing normally have two samples taken, and separate laboratories have to confirm for a positive result. GATSO cameras, similarly confirm speed by taking double exposures and their own sensor.
I am deeply disconcerted to find that a similar backup is not allowed with high readings.
Interesting state of affairs when the judiciary places more importance on the testimony of one machine over several human witnesses.
Perhaps we could replace magistrates with an algorithm. Infallible, apparently, not like those human models.
I've no sympathy for drunk drivers. Nevertheless, as an IT professional of many years experience, I support the previous comments about technical fallibility. If someone is about to be deprived of their licence, and possibly their livelihood, there should be no grounds for doubt. That means a simple, independant check on the evidence; not some self-test feature that relies on a proxy signal. Or is this just another example of regressive cost-cutting?
Anonimouse,
In relation to your comments about atheletes and Gatso cameras above...
People doing a breath test are required to provide TWO samples - the lowest is used as evidence. If there is a massive difference between the two or some other reason to suspect the machine is faulty, then a blood sample will be required instead.
Not only that, but the station breath test machine routinely tests itself before and after each test, again, if any fault is detected, it will be flagged up.
Whilst I agree that machines are not infallible, I would suggest that with these safeguards in place, the breath result is correct beyond "reasonable" doubt - which, I am led to understand, is still the standard of proof required, and not beyond "all" doubt, which is what some would have us believe!
Given the choice of evidence from an accused and a couple "witnessses" as what alcohol had been consumed or a machine - I know what I would rely on. The Intoximeter 9000 machines have been around for years now and are rigourously checked and tested. If there is any anomaly then the police revert to blood or urine. At the end of the day the defendant had (by his own admission) been drinking two pints therefore he shouldn't have been driving and should have plead guilty and not wasted courts time.
Astounding that there is apparently no questioning as to the reliability of this equipment, nor as to its individual service history. Presumably the police would be able to provide evidence as to the care and maintenance regime of this item. All equipment fails eventually - sometimes intermittently, sometimes permanently.
Was there any question from the Bench as to these aspects? Or did the Bench not consider the potentials?
I'd certainly be interested to see any independent scientific research into the fallibility - or otherwise - of such machinery. For far too long we have blindly accepted manufacturers' (and police authorities') routine assertions about the total reliability of their choice of equipment. Anyone remember the story of the 'unsinkable' Titanic? And yet there are many instances of cases failing as a result of expert witness evidence. Just how accurate and reliable are these (and other) machines? Do Magistrates actually bother to ask?
Oh and the case quoted above is a Candadian one with no relevance to UK law. However, the accused admitted he had drunk two large glasses of beer before driving. Need I say more!
In my opinion the appeal courts judgment was perverse. Of course the accused is going to say he wasnt drinking much and the evidence of backward calculation is very much subjective.
"People doing a breath test are required to provide TWO samples - the lowest is used as evidence. If there is a massive difference between the two or some other reason to suspect the machine is faulty, then a blood sample will be required instead."
TWO samples eh? That must be conclusive.
Now, if you said "a samples on TWO DIFFERENT machines", you would absolutely in the clear, but there is nothing to stop a knackered machine failing in such a way as to provide a consistent reading.
It could, for example, have a sensor that spits out one value regardless of what is actually being passed over it.
That is not going to happen - or is fantastically unlikely to happen consistently - with two different machines.
If I genuinely thought myself innocent - as opposed to just chancing it - I'd insist on the blood test.
Chuck said: 'Do magistrates actually bother to ask?'
I'm sure all mags here would agree with me that there are many occasions when we'd love to be able to ask questions. But the bench is not there to act either for the prosecution or defence. It's there to listen to and weigh the evidence put before the court and to make a decision based on that evidence. If the prosecution confirms that a machine has been maintained in accordance with procedures it is not for the bench to question whether those procedures are sufficient. The presumption remains that a properly maintained intoximeter is accurate. It's up to the defence to challenge that if they wish.
Several years ago I worked at a laboratory that was responsible for the calibration of breath-test machines. Unless things have changed recently, the machine is regulaly checked for accuracy.
I remember a speeding case many years ago which rested on the testimony of two witnesses, a radar gun and a tachograph. Can't remember who turned out to be lying though.
I'm reminded of the machine that when challenged about its accuracy replied "this cannot go wrong... go wrong... go wrong... go wrong ... go wrong"
This item takes us into a very technical and fascinating area of the law. The common law presumes that “devices” are working correctly at the time of use. It is permissible to “rebut this presumption” by evidence. This presumption is still sometimes known by its old latin tag as “omnia praesumuntur.” Similarly, you would presume that a “device” sued (e.g. to assess speed etc) was of an “approved” type but, again, the contrary can be proved.
Sometimes there are “statutory presumptions.” At one time the Police and Criminal Evidence Act 1984 s.69 required that where a “computer” produced a document, it was not possible to sue the document in a criminal trial unless it was accompanied by proof that the computer was operating properly and was not used improperly. However, this statutory rule was repealed by the Youth Justice and Criminal Evidence Act 1999. So, today, if such computer evidence is produced the court falls back on the common law presumption that the computer was working properly but the contrary may be proved (if possible).
Another statutory presumption enters breathalyser cases. It is Road Traffic Offenders Act 1988 s.15(2). This has the effect that when an intoximeter reading is taken, the court may presume that the intoximeter reading is not less than the amount of alcohol present at the time of the actual offence.
For those who wish to research this please see:
http://www.cps.gov.uk/legal/
sect...apter_e.html#15
and
http://www.opsi.gov.uk/acts/acts...2#pt1-pb2-
l1g15
The House of Lords case Cracknell v Willis was actually decided in 1988.
(Quite right, Peter, thank you. I got the wrong date from the CPS website!) - ed
Don’t have an electronic link but the case reference is [1988] 1 AC 450.
These days most of these cases are raised, as Bystander says, by specialist road traffic lawyers. The cases generally seem to somehow get before District Judges !! You are perhaps “lucky” to see one Bystander.
Edited By Siteowner
@ JJ-JP.
Sadly this is not so. The Bench may always seek clarification - and in my experience frequently does. I accept your point about conducting a prosecution and/or defence, however that is not what is suggested.
Clarification is an interesting term.
bigben - "Whilst I agree that machines are not infallible".
Well if you agree that, then you cannot argue against nonimouse's point.
It happened again - This time I was the driver.
We parked the car in the same place and the same camera (a machine) produced an FPN for £120 for a parking offence on a car parked completely lawfully, displaying a disabled badge for a disabled person (my Mother).
This time Camden are getting an invoice for my wasted day travelling 140 miles to photocopy the badge that was clearly visible on the dash.
And don't get me onto these new phone & park 'machine' systems (I don't have a mobile).
Bugger machines, Bystander, and start listening to people.
I'm spending more time in London lately. I estimate that I'm photographed at least 30 times a day just taking my dog for her walks. There aren't enough pound coins in circulation to keep up with the parking tariffs and I feel that one day I'll end up in prison because, like Peter Finch, I've had enough and I won't take any more.
On the bright side, at least I'll come out to a meaningful job with the Tory party.
I don't know about this case, but I read that breathalysers don't detect alcohol: they detect a range of organic chemicals that include both alcohol and some metabolic byproducts. If your body chemistry is funny - say, if you're dehydrated, or suffering from ketosis, or a diabetic - then the breathalyser's reading will be much higher than it ought to be.
Of course, if this was the case then the man ought to have been able to reproduce it on another machine when he hadn't been drinking.
Here's some more about Cracknell v Willis: this was read to us in open court by prosecuting counsel:-
In Cracknell v Willis Lord Griffiths said:
"If Parliament wishes to provide that either there is to be an irrebuttable
presumption that the breath testing machine is reliable or that the
presumption can only be challenged by a particular type of evidence then
Parliament must take the responsibility of so deciding and spell out its
intention in clear language. Until then I would hold that evidence which,
if believed, provides material from which the inference can reasonably be
drawn that the machine was unreliable is admissible."
But his Lordship went on:
"I am myself hopeful that the good sense of the magistrates and the
realisation by the motoring public that approved breath testing machines
are proving reliable will combine to ensure that few defendants will seek
to challenge a breath analysis by spurious evidence of their consumption of
alcohol. The magistrates will remember that the presumption of law is that
the machine is reliable and they will no doubt look with a critical eye on
evidence such as was produced by Hughes v McConnell before being
persuaded that it is not safe to rely upon the reading that it produces."
Lord Goff did not share Lord Griffiths optimism that "motorists would
not seek to challenge the analysis by spurious evidence of their consumption of alcohol", but did share his confidence in
"the good sense of magistrates who, with their attention drawn to the
safeguards for defendants built into the Act ..., will no doubt give proper
scrutiny to such defences, and will be fully aware of the strength of the
evidence provided by a printout, taken from an approved device, of a specimen of breath provided in accordance with the statutory procedure."
These dicta may perhaps be read as implying that evidence which
merely contradicts the reading, without directly casting doubt on the
reliability of the device, may be technically admissible but should rarely
be permitted to succeed. However, it is significant that Lord Goff referred
in the passage quoted to the safeguards for defendants which are built into
the legislation creating the drink-driving offences.
"Interesting state of affairs when the judiciary places more importance on the testimony of one machine over several human witnesses.
Perhaps we could replace magistrates with an algorithm. Infallible, apparently, not like those human models.
mnk | 11.13.07 - 10:08 am | # "
That depends on the credibilty of the witnesses. And they were almost certainly friends of the accused. It would seem that Bystander found their evidence unconvincing.
In a previous incarnation, I have worked in the avionics industry. We have our own version of beyond reasonable doubt in that flight control systems have to be multiply redundant and vote on a course of action. The systems which vote normally have entirely independently writen programs. Only in this way, are we satisfied that the electronics involved are performing in a satisfactory manner.
In a similar way, using the same machine in an alcohol test, even with two samples, represents a single point of failure. I'd point out that, even with calibration, there is no absolute guarentee that a machine produces a linear response y for all values of x. Since two entirely independant methods are possible out of 3 (breath, blood and urine), it should definitely be the case that two separate methods are used.
Griffiths' ruling is entertaining. On the one hand he places responsibility for the drafting of the legislation on Parliament (rightly), and on the other he says that the presumption must be that the machinery is reliable.
On what basis did Lord Griffiths decide that presumption must be that the machinery is reliable - to the point of infallibility? And on what basis did he decide that such machinery would always be used correctly and properly maintained? Does he, in fact, acknowledge that technical examination of such equipment and/or its application may prove that the machinery is fallible? It would be wise for him to do so.
"That depends on the credibilty of the witnesses. And they were almost certainly friends of the accused. It would seem that Bystander found their evidence unconvincing.
J L Jones | 11.14.07 - 11:45 am"
Frankly I find that comment remarkably disappointing. Why does the credibility of an individual witness depend (apparently entirely) on their relationship to the accused?
It's their testimony which is important, not who they are. Or is your presumption that - because of such a relationship - they are to be considered as perjurers?
Otherwise perhaps it would be best if they did not give evidence at all...
The machines are so fallible that a panel of judges in Florida wrote that "unless the defense can see how the breathalyzer works," the device amounts to "nothing more than a 'mystical machine' used to establish an accused's guilt."
If, when summing "8+3" on a calculator, the result is "6.2771" it's fair to assume you did something wrong and you repeat the calculation. If you repeat the calculation and receive the same or similar result, do you assume it to be true?
With a breathalyser you don't know what the actual input was to determine that an error occurred (cough*Intel floating point bug*cough). A blood test is much more accurate and any motorist stopped and found by a breathalyser to be over the limit must have the option of submitting to a blood test for corroboration.
nonimouse - Agreed
You have to wonder why it was deemed to make a cut-off for using a blood sample at under 50mcg only. Someone must have believed that the machines can be unreliable.
J L Jones - "That depends on the credibilty of the witnesses. And they were almost certainly friends of the accused. It would seem that Bystander found their evidence unconvincing."
Friends or not, they stood on oath and told "several" similar stories.
I'm no Luddite but I know enough about programmed machines to give credence to humans first and foremost.
Bystander has failed to say why this guy was breath tested. Was he driving in a manner that caused Police to believe he was under the influence? Did he do something wrong? Was it a random test? It all counts toward the credibility of the accused and witnesses.
If a person is going to lose his driving privileges then it behooves the Justice system to allow that person the benefit of an accurate blood sample to be taken at any level.
Athletes banned because of false detection of drugs caused by medication, Barry George found guilty because of a single (now deemed unreliable) powder particle, man with Parkinsons laughably accused of burglary through a window (200 miles from his home) on a DNA match.
Too much reliance on 'experts' and misunderstood technology has blinkered the Judiciary and, more importantly, Juries.
Anybody here happy to fly on an Airbus with 2 of the 3 computers down? The pilots won't and the CAA won't allow them to, anyway. I wonder why...
Agree with Rod: allowing blood tests under 50 is admittance of the machines' potential for unreliability and/or inaccruracy.
Moreover, those getting a reading well over the limit are likely to be dealt with most harshly, with greater impact on their lives. All the more reason why they should have the option of a blood test.
Even if the machines are incrediably accurate, if nagging doubts about them undermine the public's belief in judicial system, then a better system should be put in place.
I cannot believe the faith that non-technical people repose in machines. This seems to be one more instance of said idiocy.
Let's hope that Bystander is one of the first to be arrested for not matching his ID card-this might give him pause. Current estimate (from a statistician colleague consulted by the forensic service) is 20% failure to confirm identity. Makes you entirely happy, doesn't it?
Hmmm....I reckon the chances of Bystander having an ID card are about zero. My guess is he'll be sipping his glass of Saumur Champigny on the terrace of his villa in France before they're in.
Bystander - The deletion of a wry but, nevertheless, innocuous comment seems harsh (though I guess it must have struck some truth).
I thought you were "big enough and ugly enough to take it".
Is this why we lack the astute and often accurate comments of Rogerborg?
If you don't want me to comment just say so. Or is it just that the technology has failed?
(Not so touchy, old chap. I haven't deleted anything for weeks. Possible finger problem your end?) - ed
Edited By Siteowner
Oops, I'm back again. Guess it must have just been a glitch in the software! Apologies...
@Rod: If Bystander emigrated to France, I believe he'd need an ID card as a resident....
nonimouse - It won't hold the details that are proposed in this country.
I'm not against ID cards, by the way, as long as they have a picture of me, my name and signature and are not forged. BUT NOTHING ELSE.
Bystander - "Not so touchy, old chap. I haven't deleted anything for weeks. Possible finger problem your end?"
Or technology perhaps? I saw it published, then it was not. I hope Haloscan aren't writing the programs for those breathalysers. Again, apologies.
While he had witnesses to how much he had drunk while he was out, they wouldn't have been in a position to give evidence as to how much he had drunk earlier in the day.
Some years ago, my then husband was convicted of drink driving, with a reading approximately three times the limit. As he had been unable to blow sufficient air into the breathalyser, this was established through a blood test and wasn't challenged by my ex.
He had been out with friends and was the designated driver. They confirmed that he had only had one pint while they were out and that he seemed quite normal. All this established was that "normal" for him was around double the drink drive limit!
In case this just sounds like the comments of a rather spiteful ex-wife, I should add that, not long after this, he acknowledged the extent of his drink problem and was admitted to a local addictions unit.
My point was that independent witnesses may carry more weight. The friends wouldn't have to be lying. Perhaps they'd all lost track of how much they had to drink.
And no matter how truthful and accurate, they could only testify about how much he had drunk in the pub. If he had already had more drinks at home earlier in the day, or still over the limit from the night before, how would they know?
I don't see how any witness evidence in such a case can be relied on.
Don't the police conduct a roadside breath test prior to arresting a driver? This would imply that the driver was tested on two machines.
A bit off topic, but I just wondered what your thoughts were on this little snippet: http://news.bbc.co.uk/1/hi/scotl...est/
7095134.stm
I'm a little confused by it, myself. Having sex with a bicycle is odd behaviour, certainly. Amusing even, except perhaps for the poor bicycle itself. But if it's in his own, locked room, then I don't see what business it is of anybody else, or how he can be "breaching the peace".
It certainly makes me wonder where it all ends. What if he'd been merely talking suggestively to his bike - could he have been arrested for sexual harassment?
If I swear at my car, will I be in trouble for causing it undue stress?
@Shooters: I direct you to the comment I made earlier saying the same thing.
I wonder if the bike was a Chopper? Was it over 16? Did it consent?
More seriously, I fail to see how stimulating oneself in private gets you on the register, no matter what device you "fraternise" with. I'm sure that the Scots have lost the plot with this case, and it's obviously an offence for ladies to use vibrators north of the Border as a result of this stupid judgement.
AIUI, this is because a hotel/hostel room doesn't count as fully 'private': if someone with a reason to come in comes in while you're engaging in sexual activity (as with the cleaner), you notice them and you don't stop doing whatever you were doing, then it's legally the same as doing it in public.
The bike isn't really relevant - if he'd've been masturbating and had continued doing so at the cleaners, then he'd have faced the same charge.
@john b: so you and your wife/ girlfriend book a hotel room, a maid uses the pass key whilst you're busy getting it on and don't notice, and you get placed on the Register?
Somehow I don't think it would happen. Most maids would've said "Sorry, I'll come back later" and left.
I'd like to hear what Bystander has to say about the Law involving itself in tossers (pun intended) who harm no one.
A person is not obliged to open their door to anyone and is entitled to privacy (even in an hostel).
Where I live women are bouncing up and down on horses all day long. Do I call the Police if they look a little glazed and are grinning?
This country is down the tube (hopefully it'll get 5 bullets in the head for it).
What is it with Police culture that panders to such a stupid waste of time and our money? Call them about a burglary and it's a 3 week wait for SOCO.
Still, 'nother one on the database and a 'crime' solved.
More jokes:
He's obviously bike-sexual
Was it a mountin' bike?
Was he on his monthly cycle?
"...if someone with a reason to come in comes in while you're engaging in sexual activity ... you notice them and you don't stop doing whatever you were doing..."
Surely if there is a locked door you have some expectation of privacy? And if you have, then there is also an expectation that the person who has breached your privacy should decently retire, rather than that you should stop?
On a lighter note, there was the one about the waiter delivering drinks to hotel rooms who was shown how to defuse the embarrassing situation of disturbing a naked woman by turning away, pretending not to have seen her fully, and addressing her as "Sir".
He later disturbs a couple in bed, turns away as instructed, and says "Would either of you two gentlemen like coffee...."
nonimouse - He could just be a peddlephile.
Arghhhh....'Pedalphile".
Wish we could edit our speeling mistooks.
I understand that as well as being put on the sex offenders' register, he's been forbidden from entering any branch of Halfords.
I'm surprised that his defense wasn't "I was told by some blokes that the local bike gave you a really good time..."
"Currently, there are several issues of this type where the world is digging a huge hole for itself. Biometrics is one, Global Warming is another..
dodgy geezer | 11.13.07 - 9:21 am | # "
About time we had a Godwin-type law re discussions being hijacked by Global Warning Scaremongers.
(How about 'Oh-my-Godwin's Law?) ed
Edited By Siteowner
Empire, Roman and Fall come to mind. Just wish it was a little quicker so that I could send my bottle into space saying 'told them so'.
Assuming that Rod's comment about Roman Empire etc is aimed at my anti Global Warming Scaremongers shot (for I am that anonymong)all I can say is that he has already made his mind up so everyone else is wrong. How arrogant!
This is thread drift on a huge scale. If I hadn't been so busy in the last few days I might have cracked the whip a bit.
From here on in it's drink-drive stuff or the oblivion of the delete key.
I was just wondeering if those complaining about the accuracy or otherwise of the intoximeter machine would be winging about the machine on which the blood analysis would then inevitably be done as well. If one machine is so inaccurate in their eyes, why not another? Or do you quaintly think that it's all done with a bit of litmus paper??
There is an American blog which discusses the law (american) relating to drink/driving but also contains a variety of article relating to the reliability (or otherwise) of some of the machines they use - some point to the underlying evidence.
Even something as simple as being diebetic can under some conditions trigger misleading results (relates if I recall, the traces of acetone in the blood)
Good starting point is http://www.duiblog.com/2005/05/0...-why-they-dont/
Commenting by HaloScan
