LONDON, UK – Leon De Jager, a 31-year-old IT consultant from north London, was astonished when he was charged with failure to provide a sample after blowing into a breathalyser machine exactly as was told by police.
But the case was dropped after Driving Defences, a specialist road traffic law firm, proved that officers had incorrectly fitted a one-way valve into the breathalyser machine, making it impossible for the driver to provide a sample.
Every year thousands of motorists who are suspected by the police of driving while under the influence of alcohol are banned from driving because they fail to give a breath test at a police station.
Failure to provide breath test when asked by a police officer carries an automatic two year driving ban.
Mr De Jager, who had been stopped by police while driving back home from a friend’s house late at night in May 2008 in his Renault Clio, said: “I couldn’t understand it. It didn’t matter how hard I blew, it didn’t register my breath.
“The police thought that I was deliberately avoiding the test and charged me – I couldn’t believe it. I even asked for another chance so that I could prove that I wasn’t over the limit.
“But the police weren’t interested. They said that I’d had my chance. They just wanted to charge me with failure to provide.”
The case against Mr De Jager was dropped in December last year when legal experts at Driving Defences asked to see the valve through which he had attempted to give the breath test.
A simple DNA test carried by the Crown Prosecution Service revealed that he had been blowing through the wrong end.
Martin Hammond, a principal at the firm, said the case meant thousands more drivers may have grounds for appealing against convictions.
“The problem lies in the mouthpiece,” he said. “It is designed to allow air to pass in only one direction. But we have shown that with a breath testing machine used by many of country’s police forces, the mouthpiece can easily be inserted into the device the wrong way.
“This means that no matter how hard they try, it’s impossible for innocent motorists to provide a specimen. If they are charged with failure to provide a sample, drivers can face more serious consequences than drink driving itself.
“Thousands of motorists could have been wrongly convicted and they can now appeal.”
A survey by The Daily Telegraph found that some of the biggest forces in the country, such as the Metropolitan Police, use the same breathalyser. Out of 32 forces surveyed, five forces used a breathalyser with the same mouth piece. The others are Essex, Cheshire, Suffolk and Sussex. Eleven forces declined to say which type of breathalyser they use.
At least 17,189 motorists were tested across the five forces last year, although the number is likely to be much higher. The Metropolitan police used the kit to test around 12,800 people who were arrested after failing or refusing a roadside breath test.
Since 2001 around 8,000 drivers a year have been banned from driving for failing to “provide a specimen for analysis (breath, blood or urine)”.
In 2007, the last year for which figures are available, 8,232 drivers were banned.
A Home Office spokesman said: “Type approval of policing equipment such as alcohol breathalysers is a rigorous procedure designed to ensure that readings produced by a device are consistently reliable and accurate and so can be depended on for evidential purposes”.
A spokesman for the Association of Chief Police Officers said “no problems or concerns” had been raised about the mouthpiece generally, “but as with any piece of equipment of this nature, it is important it is used in accordance with the training provided”.