DUI test challenged in court

In what could be a legal first in the Cayman Islands, a lawyer is arguing that a breathalyser test done on his client cannot be trusted because the man’s diabetes and a crash diet he was on could have skewed the results.

Attorney James Stenning told the Summary Court last week his client, Russell Thomas Hollerbon, had recently been diagnosed with diabetes and ordered onto a restrictive diet when he blew .144 on an alcohol breathalyser after being pulled over by police on the night of 8 June, 2007.

Hollerbon said he had between two and four beers at Country and Western on the way home from work, but denied he was drunk when police pulled him over in Bodden Town.

Describing it as “an exception case”, Mr. Stenning said the combination of diet and diabetes could have set off a chemical reaction in Hollerbon that caused his body to produce a naturally occurring type of alcohol, known as propanol.

Together, the propanol and the alcohol from the beers could have pushed Hollerbon over the legal blood alcohol concentration limit of 0.1 per cent, the court heard.

While the case could be a first for Cayman, inaccuracy problems with breathalysers have led many jurisdictions to insist that blood tests be performed on anyone suspected of drink-driving.

Mr. Stenning told Magistrate Nova Hall that had police taken this option, there would have been no doubt about the accuracy of the reading, as a blood test is capable of separating the two types of alcohol.

Asked if it was possible that Hollerbon’s diet and diabetes could have pushed the breathalyser reading from below .1 per cent to .144, Dr. Stephen Pickering, a diabetes expert appearing for the defence said ‘it’s possible.’

Mr. Pickering said even the diet alone could have caused propanol to form in the blood.

While he could not comment on what happened on the night in question with Hollerbon, Mr. Pickering said this phenomenon can cause people to appear intoxicated and fail a breath test, even when they have not been drinking.

Police Inspector Kennedy Rankine said Hollerbon was not offered a blood test because, when asked if there was any medical reason why he could not take the breathalyser test, he said ‘no’.

However Hollerbon said that as a recently diagnosed diabetic he was not aware of the problems associated with diabetes and breathalyser tests, and in any event, had told the officers he was on medication for diabetes and high blood pressure.

Police Sergeant Winston Churchill the fourth, who appeared as a Crown expert on breathalysers, said the model used by police in Cayman is capable of distinguishing between different types of alcohol, although he said the machine would only display an interference notice if the amount of propanol recorded was greater than .1 per cent.

‘He could have been below the limit of .1 per cent,’ Mr. Stenning said. ‘It is possible that the rest was made up by propanol.’

Closing the case for the Crown, Mr. Rankine said the machine did not indicate any interference, as it is capable of doing, and said that Mr. Pickering had been able to say little of use about whether Hollerbon was drunk on the night of his arrest.

He asked simply that the judge ‘accept the evidence of the officers, reject the evidence of the defence and convict the defendant.’

But Mr. Stenning said the circumstances of the case meant the breathalyser test could not be trusted.

‘It is for the defence only to produce reasonable doubt and rebut the presumption of the accuracy of the breathalyser,’ he said. ‘If there is doubt, the benefit of the doubt must be given to the defendant and he must be acquitted.’

Mr. Stenning asked that Magistrate Hall consider ruling on whether all future suspected DUI cases should be subject to the more accurate blood tests.

‘[Blood tests] are available to police here to prevent this happening again,’ Mr. Stenning implored the judge.

The Magistrate said she will consider the matter further before giving a verdict in the case on 16 December.

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