Court allows representation before breathalyser tests

DRINK DRIVING: solicitor's advice should be taken if available

Defendants arrested for suspected drink-driving offences have the right to insist that they contact a solicitor before they decide whether to take a breathalyser test - but only if one is immediately available, the High Court has ruled.

The case of Kennedy v CPS arose when the defendant was convicted of breaches of the Road Traffic Act 1988 for failing to provide a breath specimen without a reasonable excuse.

In his appeal, the defendant argued that he was waiting to see a solicitor before deciding whether to give the samples.

Lord Justice Kennedy ruled that 'in this jurisdiction, the public interest requires that the obtaining the breath specimens part of the investigation cannot be delayed to any significant extent in order to enable a suspect to take legal advice'.

However, he said that if a duty solicitor were present at the police station or contactable immediately by telephone, the suspect should be allowed to attempt to make contact prior to taking the test as long as he had made a specific request to do so.

'But where, as here, the suspect does no more than indicate a general desire to have legal advice, I see no reason why the custody officer should not simply continue to take the details and alert the solicitors' call centre at the first convenient opportunity,' he added.

Rodney Warren, director of the Criminal Law Solicitors Association, said it had been understood that the custody officer was under no duty at all to interrupt the breath-testing procedure.

'This case is suggesting that if legal advice is immediately available then the defendant should be afforded that opportunity, so it is welcome clarification,' he said.

Paula Rohan