18-month disqualification upheld

Disqualification from driving for 18 months was not too long for a man who refused to provide a blood sample for alcohol testing.

That was the ruling of Mr. Justice Alexander Henderson after he heard arguments in an appeal from the Summary Court on Friday.

Conviction for refusal to provide a sample of breath, blood or urine attracts a minimum disqualification of 12 months.

The judge agreed with the sentencing magistrate, who had pointed out that if the courts imposed only the minimum, drivers could try to conceal heavy alcohol consumption by refusing to take the test.

High alcohol readings can attract disqualification periods of two or three years.

In presenting the appeal, Attorney John Furniss argued that the driver should not be penalised for bad advice from a previous attorney, who is no longer on the island.

He and Crown Counsel Scott Wilson agreed on the basic facts, which arose from an incident in September 2002.

An officer stopped a driver for speeding around 2.10am and smelled the strong scent of alcohol. He asked if the driver had been drinking alcohol and the man said no. When the officer requested the man to take a roadside breathalyzer test, the man said no.

He was arrested on suspicion of driving under the influence and taken to Central Police Station. There he was allowed a phone call to speak to his attorney. She came to the station.

In the presence of officers, she advised him not to take the breath test. The officers went through the procedure of requesting it and advised him of the consequences of refusing. He refused.

He was then taken to hospital for blood testing. Again his attorney advised him to refuse and he did so. Officers then requested a sample of urine for testing and the same thing happened. He was then charged.

The judge indicated it had been a while since he practised as a defence attorney. To his recollection, there were only two reasons why an attorney would not want a client to give a sample – because the client is drunk or because he has suffered some injury or medical condition.

Mr. Furniss argued that the man was not falling down drunk nor aggressive with officers nor had he been involved in an accident. Those would have been reasons to increase the disqualification above the minimum, he said.

Mr. Justice Henderson posed questions. Wasn’t it logical that the attorney thought the driver was over the limit? But refusing to provide a sample is against the law, so was the attorney advising the driver to break the law?

He said it was tempting to reduce the sentence because of the previous attorney’s bad advice. But he said it was significant that the officer had smelled a strong scent of alcohol and the driver had denied drinking. Then the driver refused the roadside test.

He had made that refusal without the benefit of any advice – bad or good.

The facts of the case, even before the attorney entered the scene, satisfied the judge that 18 months was not inappropriate.

Mr. Wilson then said he had been instructed as departmental policy to apply for costs on behalf of the Crown.

The judge said the request for funds might be new policy, but he did not feel comfortable awarding costs against a defendant in a criminal case.

Mr. Wilson suggested that the court might well feel that the defendant had an arguable case.

The judge agreed. He said he would be inclined to confine cost awards to appeals that are frivolous or without merit or where the appellant fails to abide by the rules of the court.

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