Motorist who failed to provide breath sample to police loses appeal against car forfeiture

The Sheriff Appeal Court refused the appeal after ruling that the sentence imposed was not excessive on the facts and circumstances of the case.

Sheriff Principal Mhairi Stephen QC and Sheriff Murphy QC heard that the appellant John Duncan pleaded guilty at Lerwick Sheriff Court to a contravention of section 7(6) of the Road Traffic Act 1988, which provides that a person who fails without reasonable excuse to provide a specimen of breath when required to do so to ascertain the proportion of alcohol in that person’s breath or ability to drive will be guilty of an offence.

The appellant, 68, came to the attention of the police on the public road between Brae and Roe on Shetland due to the manner of his driving on the day in question in October 2015, and initially refused and then failed to provide a specimen of breath.

The court was told that he had a directly analogous conviction from February 2009, as well as previous convictions ranging from a High Court conviction under sea fishing conservation order to offences of disorder.

However, the appellant argued that the order made by the sheriff in terms of section 33A of the 1988 Act for forfeiture of his vehicle was excessive and therefore amounted to a “miscarriage of justice”.

But the appeal sheriffs observed that the offence of failing to provide breath specimens when required was “a serious one”.

“It undermines the provisions of the Road Traffic Act with regard to detection and prosecution of drink drivers as it deprives the court of a reliable measure of the level of alcohol in a driver’s breath for the purpose of assessing the level of intoxication; ability to drive and the risk which the offender poses to public safety on the roads,” Sheriff Principal Stephen said.

“No doubt that is why the commission of that offence may trigger the court’s powers under section 33A. A contravention of section 7 is specifically included in the range of offences which invokes the court’s powers under section 33A,” she added.

Refusing the appeal, the sheriffs also noted that the previous analogous conviction, which was “another deliberate challenge to enforcement of road traffic law”, was “a significant aggravating factor”.

Delivering the opinion of the court, Sheriff Principal Stephen said: “Enforcement of the road traffic law has as its principal purpose the protection of the public and penalising those who flout road traffic law. A second deliberate contravention of police requirements with regard to breath testing is rightly a matter of some significance and gravity for the sheriff.

“The sheriff records that he had in mind the public interest and the deterrent effect that the court would exercise its powers in terms of section 33A irrespective of the value of the vehicle.

“In our view when the court is considering forfeiture in terms of section 33A the sheriff requires to consider the particular facts and circumstances of the offence and the offender with a view to determining the overall penalty to be imposed.

“Factors such as public safety and protection together with deterrence will be relevant to that determination. In this case the appellant’s refusal to comply with the requirement to give breath specimens has deprived the court of an assessment of the level of alcohol in his breath.

“This is the second occasion the appellant has deliberately refused to comply in a jurisdiction where it is said that such offending is prevalent. In our view, the sheriff was entitled to take into account not only these facts and circumstances, which include the appellant’s means but also local factors relating to the prevalence of this type of offending.

“In our opinion, the circumstances of this case disclose specific factors which support the sheriff’s decision to order forfeiture. Accordingly, it cannot be said that the sheriff’s decision to order forfeiture was excessive and the appeal is refused.”