Court challenge to breathalyser evidence dropped

A criminal court appeal that delayed the hearing of
dozens of drink driving cases in the Cayman Islands justice system was dropped
last week, the Caymanian Compass has learned.

The appeal followed the vacating of a Summary Court
decision to discharge a man accused of drink driving, even though his
blood-alcohol level was measured at more than twice the legal limit.

Ian A. Morrison was discharged this year when Chief
Magistrate Margaret Ramsay-Hale ruled that a certificate produced by a Royal
Cayman Islands Police constable stating the results of a breathalyser test
given to Mr. Morrison was inadmissible in court.

According to the certificate, Mr. Morrison’s
blood-alcohol level was measured at 0.223 per cent. The legal limit in the
Cayman Islands is 0.100 per cent.

Mr. Morrison’s attorneys argued in the Summary Court case
that the breathalyser used by the RCIPS – the Intoxilyser 5000EN – only served
to show the alcohol content in the defendant’s breath, not in his blood at the
time it was measured. Ms Ramsay-Hale did not accept that assertion.

Rather, the chief magistrate discharged Mr. Morrison for
different reasons, according to court records.

The Traffic Law (2003 Revision) states: “A certificate
under the hand of the constable operating the alcohol-in-breath measuring
device as to the result of the breath test…and shall be evidence of the
proportion of alcohol in the breath.”

In her reasons for dismissing the charge, Ms Ramsay-Hale
stated: “It is not admissible to prove the proportion of alcohol in the blood
as measured by a breath analysing machine which is the only measurement for
which a limit has been prescribed by law.”

In other words, since there was no limit that existed for
‘alcohol in breath’ under the law, the certificate produced by the constable
had no evidential value because the charge against Mr. Morrison referenced
alcohol in the blood.

Crown prosecutors “felt aggrieved” by this decision,
according to court records, and filed an appeal in the Cayman Islands Grand
Court claiming the chief magistrate had made an error in interpreting the law.

Visiting Grand Court Justice Cooke, who considered the
appeal, appeared confused by the Summary Court ruling.

“I must confess, I have had some difficulty in
appreciating the reasoning of the Learned Chief Magistrate in the passage
excerpted above,” Justice Howard Cooke wrote in granting the Crown’s appeal on
5 August. 

“It is certainly impossible to accept that there was ‘no
prescribed limit for alcohol in breath’,” Justice Cooke wrote in the 5 August
appeal decision. “There could be none since it is the analysis of the breath
which is the vital aspect of the breath test. The proportion of alcohol in the
breath is determined by the procedure mandated by the law which is by the
calculation of the intoxilyser.”

Justice Cooke also stated that there was no issue
regarding whether the Intoxilyser worked or whether the police commissioner had
authorised its use by officers. The justice refused to accept submissions by
Mr. Morrison’s attorney that relevant sections of the Traffic Law were
ambiguous.

The justice held that the Summary Court was in error in
its original judgment and ordered Mr. Morrison’s case returned there “for trial
according to law”. 

Last week, an appeal of the Grand Court justice’s
decision was abandoned, clearing the way for Mr. Morrison’s – and more than 80
other DUI cases – to proceed.

Some of those matters are due to come before the courts
on 6 December.