May 20 2020

Case report: attention to detail wins the day

One of the most oft overlooked elements in motoring law is the law itself – that’s not to say that courts and lawyers don’t worry about the fundamentals of offences and what needs to be proven. No, it’s the basic fundamentals of law that underpin the functioning of the Criminal Justice System that are frequently overlooked. This case report looks at a case we won by paying attention to the basics.


CW had been arrested on suspicion of drink driving and at the police station he blew 69µg in 100 ml of breath. He instructed us with the aim of avoiding conviction.

What we did

We obtained the prosecution evidence and took CW’s instructions. He instructed that the police officer had not given him the statutory warning when requiring him to provide two specimens of breath at the police station. At this point there was no CCTV or other evidence to say whether the police had or had not given the warning.

Perhaps, we should make clear here that if the police do not give the statutory warning when requiring the breath specimens it is fatal to their case whether or not the defendant subsequently blows over the limit.

We put CW’s case to the prosecution and notified them that they would have to prove that the police officer conducted the breath test correctly.

In court

A week before the trial was scheduled, the prosecutor sought to adjourn the trial because their officer was unavailable. We attended the hearing and opposed their application citing that it was being made very late in the day and at a time when the prosecution still had not served all of their evidence. We pointed out that the lack of an officer was not necessarily fatal to the prosecution case since they could still serve the CCTV of the incident and prove their case that way.

The judge refused to grant their adjournment.

On the morning of the trial, we attended and were met by a prosecutor triumphantly waving his laptop with the CCTV of the breath test procedure that did indeed prove that the statutory warning had been given. Our advocate asked a simple question: how did the prosecutor intend to adduce the CCTV? We pointed out that CCTV is not admissible in its own right and must be adduced by a witness. The prosecution had not thought to get a witness statement exhibiting the CCTV nor did they have anybody in court who was able to adduce it in evidence. They therefore tried again for an adjournment.

We again opposed the adjournment on the grounds that they had sought an adjournment just a few days earlier that had been refused. The Crown are (or should be) aware of the law of evidence and their failure to a) serve their evidence in time; and b) produce CCTV in such a way that it could be admitted into evidence was not a good reason to grant an adjournment.


The court refused to grant the prosecutor an adjournment and the Crown were forced to offer no evidence against CW. A not guilty verdict was recorded and a Defence Costs Order was made allowing CW to recover his legal fees.

If you are facing an allegation of drink driving and would like to instruct a solicitor who knows the law and how to use it to your advantage, then get in touch with us today.