A court bid to avoid a drink-drive conviction which could have destroyed current police procedures ended in failure on Monday.
Fife farmer Duncan Black was trying to use provisions in the recent Cadder case to argue he should have had legal representation as he had a roadside breath test. Black, Woodmill Farm, by Cupar, argued he should have had access to a solicitor before he agreed to take a breath test, after being stopped on Edinburgh Road, Perth, on October 2.
His breath-alcohol reading was low enough that he could have asked to have a blood or urine sample taken instead. Crucially for some drink-drivers, the time this can take to arrange can lessen the alcohol in their systems.
Black said his human rights had been breached because he had not had a solicitor to advise him to have a different procedure. Had he succeeded, it would have thrown hundreds of cases into doubt.
The UK Supreme Court ruled in October that the Scottish system which allowed suspects to be held and questioned for six hours without access to a lawyer breached the European Convention on Human Rights. However, Sheriff William Summers said drink-drive procedures were not intended to be covered by the Cadder ruling.
“It is clear from the decision in Cadder that it is aimed at interviews where there is an interrogation and a question and answer session designed to elicit evidence which may be incriminating on its own or to get other evidence,” the sheriff said. “That’s not what happened here.
“I accept it may be said the accused is disadvantaged by not having a solicitor present, particularly when asked whether to have a blood or urine sample, but the question is straightforward and the accused can say yes or no.”
Black was found guilty after trial of driving with 44 mics of alcohol in his breath sample. The limit is 35 mics. He was found not guilty of driving at 42mph on the 30mph road. He was fined £900 and banned from driving for a year.
More than 800 cases were dropped or put on hold after the Cadder case undermined interview evidence.