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Bid to quash drink-driving conviction on asthma grounds fails

A roadside breath test checkpoint (File photograph)

A man who claimed asthma prevented him from taking a police breath test has had his conviction for refusal to comply upheld.

Michael Richardson was found guilty in Magistrates’ Court after officers said he used a “stop and start” approach to the breath test which resulted in an insufficient sample.

Richardson argued in the Supreme Court last December that asthma was to blame, but Puisne Judge Shade Subair Williams ruled he had failed to prove the condition had any effect and that he had never raised it at his trial.

Mrs Justice Subair Williams said in a written judgment: “The appellant invited this court to accept his unsworn assertions that his medical condition of asthma disabled him from providing sufficient samples of breath for analysis.

“However, he offered no reasonable explanation for having failed to raise the subject of his asthma at trial, during his cross-examination of the officers or during his own evidence on the stand.

“Instead, he left the Crown’s evidence wholly unchallenged.”

The court heard that Richardson was stopped by police at a roadside breath test checkpoint on Crow Lane in Pembroke at about 10pm on February 28, 2020.

He was riding a motorcycle with a pillion passenger.

Police officers told the court that Richardson admitted that he had been drinking when questioned.

He was ordered to submit to a roadside breath test and, after two unsuccessful attempts, a third test showed he had 105mg of alcohol in 100ml of blood – over the legal limit of 80mg/100ml.

The result meant Richardson had to take a further test at Hamilton Police Station.

An officer at the station said they warned Richardson not to take a “stop and start” approach to the test or it would be considered a refusal to comply, but the officer said Richardson failed to complete the test properly.

The officer said Richardson was again warned, but still failed to provide a sufficient sample and was charged with refusal.

Richardson said in Magistrates’ Court that he had three beers and a shot of rum before he got on his motorcycle.

Richardson told the court: “They say I wasn’t blowing properly. I don’t know. I have done it before.

“Yes, my decision was to drink and drive.”

Magistrate Khamisi Tokunbo found Richardson guilty of refusal of a breath test, fined him $1,500 and banned him from the roads for 18 months.

But Richardson later launched an appeal on medical grounds.

Mrs Justice Subair Williams said in her ruling, issued last Friday, that Mr Tokunbo was right to find Richardson guilty given the lack of evidence about asthma presented in court and the unchallenged prosecution evidence.

She added Richardson’s sentence was appropriate for the offence.

Mrs Justice Subair Williams said: “Had he had the benefit of the mitigation offered by a guilty plea, he might have hoped for a lesser fine.

“However, the disqualification period was mandatory under the law.”

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