Prosecutors have rejected a Police request to appeal a court ruling that saw a man accused of causing death by drunk driving cleared on a technicality.

The Police method of designating officers to conduct breath tests was the reason the case against Roger Bowen was thrown out last month.

But on Tuesday, the Police issued a statement insisting they've "met the spirit and intent of the law" on the issue, and calling for an appeal to be launched.

However, Acting Director of Public Prosecutions Michael McColm later confirmed: "I have reviewed the matter. I have determined no appeal will be lodged. The Commissioner of Police has been advised by e-mail a short time ago."

He did not give a reason for his decision. However, he noted in the immediate aftermath of the Roger Bowen case that "the prosecution has extremely limited rights of appeal".

Shadow Attorney General Trevor Moniz believes this could be the problem, saying of the latest news: "This case only confirms, yet again, the continuing and desperate need to change the law to allow the prosecution the same right of appeal as the defence in criminal cases.

"In matters such as this, we need the Court of Appeal to make authoritative and binding decisions. My colleague John Barritt will be tabling such an amendment to the law on Friday and I trust that the PLP Government will, this time, support this much needed amendment."

Mr. Bowen, 26, was accused of killing bartender Larry Thomas, 24, while driving drunk. It had been alleged during his Supreme Court trial last month that Mr. Bowen's van crossed into the lane Mr. Thomas was riding his motorcycle in, and hit him.

Mr. Bowen, a 26-year-old air conditioning mechanic from Sandys, denied causing death by driving with excess alcohol as well as driving with excess alcohol. The Supreme Court, in the absence of the jury, heard that he gave Police a breath test reading of 126 milligrams of alcohol in 100 millilitres of blood about 1.5 times the legal limit of 80 milligrams.

However, Puisne Judge Charles-Etta Simmons ordered on October 26 that he be cleared by the jury due to an issue over the sergeant who breathalysed him. She ruled that for a breath test result to be admissible in court, the law says the breathalyser machine operator must be "designated" as a "qualified technician" by the Commissioner. In the Bowen case, she noted, the sergeant who tested him was "certified" by the Commissioner, but not "designated" and that was not enough.

Her ruling meant the jury could not hear the sergeant's evidence that Mr. Bowen was over the legal drink drive limit. This eventually led the judge to acquit the accused, since the charge could not be proven against him.

Mrs. Justice Simmons commented at the time that the matter could have been resolved by appropriate documentation being issued under the new Police and Criminal Evidence Act and "this proves to be a case where Police practice has lagged behind the advances in the law".

One defence lawyer later told this newspaper the judge's ruling could open the floodgates for anyone convicted of driving while impaired to get their case dismissed.

But the Police took issue with what happened after reading the court ruling and consulting with the office of the Director of Public Prosecutions about their processes. Tuesday's statement said: "We have conducted a review and we are certain that every breath test was conducted by a person who was designated by the Commissioner of Police as a person certified and capable of carrying out such test. These persons were either sergeants or persons acting as sergeants or of a rank higher than sergeant. We believe that we have met the spirit and intent of the law in conducting breath testing and we have encouraged the Office of the Director of Public Prosecutions to launch an appeal of this ruling."

Chief Justice Richard Ground has previously told this newspaper that the first issue the trial judge decided whether a breathalyser operator must be designated by the Commissioner of Police is one of law, and therefore open to an appeal. However, he said the second issue the judge decided that the breathalyser operator in the Roger Bowen case was not properly designated is a question of mixed law and fact and "probably" could not be appealed. That's because prosecutors in Bermuda can only appeal a judge's ruling on a point of law, and not on a point of fact, or mixed law and fact.

This has been condemned in the past by law reformers including United Bermuda Party politician Mr. Barritt but his proposed amendment has previously been rejected by the Government. Mark Pettingill of the newly-formed political party the Bermuda Democratic Alliance said of the issue: "The fact of the matter is that as the law currently stands the Crown has no right of appeal from this type of decision. Certainly, as my colleague Michael Fahy said last week, this is an area of the law where these types of loop holes can be closed and we should, in the interest of justice, consider changing legislation allowing for the Crown to appeal in these types of circumstances."

He added: "The Bermuda Democratic Alliance anticipates proposing changes to the law to better address drunk driving offences. We must do all we can to prevent the current rate of death and serious injury on our roads particularly given the fact that the majority of fatalities involve driving under the influence."