DUI challenge fails

A man’s legal bid to challenge the accuracy of a breathalyser test carried out on him has failed.

In a hearing in November, the lawyer for Russell Thomas Hollerbon said the test could not be trusted because Hollerbon’s diabetes and a crash diet he was on could have skewed the result.

Defence Attorney James 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.

Hollerbon recorded a blood alcohol concentration of .144 per cent after being pulled over by police in Bodden Town in June 2008. He told officer he had consumed ‘a few beers’ at a bar on his way home.

Mr. Stenning argued the few beers and the chemical reaction could have combined to push Hollerbon from below the legal limit of .100 up to .144 per cent.

Dr. Stephen Pickering, a diabetes expert appearing for the defence, acknowledged it was possible.

Mr. Stenning concluded: ‘It is for the defence only to produce reasonable doubt and rebut the presumption of the accuracy of the breathalyser.

‘If there is doubt, the benefit of the doubt must be given to the defendant and he must be acquitted.’

But in a decision on 20 January, Magistrate Nova Hall rejected the argument, saying a hypothesis alone was not enough to rebut the legal assumption that the breathalyser functioned accurately.

‘Based on the evidence, I am unable to find that the defendant was probably in a condition in which alcohol was already in his system and as such this was likely to affect his blood alcohol reading,’ the judge said.

‘This would require a very high degree of speculation on my part and as such does not amount to reasonable doubt,’ she said.

While the challenge is thought to have been the first of its kind in Cayman, inaccuracy problems with breathalysers have led other jurisdictions to insist that blood tests be performed on anyone suspected of drink-driving.

Mr. Stenning had asked the Magistrate to consider ruling on whether all future suspected DUI cases should be subject to the more accurate blood tests, but the judge was silent on the point in her ruling.

The judge suspended Hollerbon from driving for 12 months and fined him $400.

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