```html AND COURT CH GEORGE IN THE HIGH COURT OF THE CAYMAN ISLANDS HOLDEN BEFORE H MARABLE SIR JOHN SUMMERFIELD C.B.E., Q.C., J.P., CHIEF JUSTICE. ON THE E H 1985 DELIVERED APP ANNE DAWSON CALW E BANKS APPELLANT for REGINA RESPONDENT Mr. Rit of c bellant Mr. Gro respondent The ann ad been ion for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer for reg for epartmer
```html hen I bl or effect：I car low that long and drop down here， who will take care of he n't blow that long." When handed the breath cube a third ti using used to take it. He was then formally charged with either n the ev failing to give a breath specimen. There is a conflict not have vidence as to what he was formally charged with. Apparent The charly it is customary， where a suspect fails to carry out the test able to instruct him again and give him another opportunity as he maen l understood the instructions correctly. At charge ons of isoe as laid before the Summary Court was that the appellant b excuse failed to provide a specimen of breath for a breath d test have which lawfully required to provide one. In the course of the trial the pel he no cas amended on the application of the prosecutor and over the obje of app the defence. The word "refused" was substituted for the word "fail he ap the end of the prosecution case there was a no case submis as overruled by the learned trial Magistrate. The defence rested on case submission and called no evidence. Plant was convicted and the appeal is from that conviction The ground are： The Summary Court erred in that 2. a) The conviction is contrary to law in that there was no case to answer in law， the appellant having been convicted of refusing to provide a third specimen of breath in relation to the one occasion in respect of which he had been arrested. b) In law， a Constable is only empowered to require one specimen of breath for a breath test and therefore not a lawful requirement and in law a person who refuses to provide such a specimen commits no offence. c) There was， in law， no prima facie case of refusal， the appellant having already consented to blow into the breath analyser twice and did in fact blow into the said machine on two occasions. ing The Summary Court ought to inds found that ile e a) Have since the refusal to provide a specimen of breath was in relation to a third requirement， and not the T cti first requirement in respect of which the appellant did ```
```html 1 H -3- W (b) base of refusal as any requirement to give more than one specimen is not a lawful requirement. T ave found that where a person is required to give specimen of breath and that person fails in relation o such requirement after blowing into the machine, that there is no discretion vested in the police pe hereby they can require another or further specimens n respect of the same arrest and occasion." (a) (b) "A2(8)(a) of the Traffic Law reads: sharson who, without reasonable excuse, ion 6 the) fails or refuses to provide a specimen of breath for offen paragraph (a) of subsection (2);... person) ct:... in the pur be guilty of an offence and liable on conviction to on a sice under section 61." vice refe refer the on 2(10) defines "breath test" in paragraph (a) as meaning "a test f to c ire's blood carried out by the means of an alcohol-in-breath measuring defin er specimen of breath provided by that person." Paragraph (b) provides o officences to providing a specimen of breath for a breath rest re been rences to providing a specimen thereof in sufficient quantity ding police rs th is defin first abortive operation it would have been open to the police of appel an harge the appellant with failing to give the breath specimen. ng the appellant a second opportunity to give a specimen of breath ed), which he had agreed to give but had not yet given, he was me Se fficer's discretion to charge the appellant then or not. It might be oppressive to have done so if the failure had been due to a misunde na of the instructions. It should be emphasised that section 62(2) emp. a de police officer to require the suspect to provide a specimen of breath for a breath test (as defined). Despite his agreement to do so hav fic lant had not yet provided that specimen of breath. He had rst pr (2 ow th ```
```html 4 ra so and t yet to tunit he police officer was doing no more than affording a further iro propriety of doing so with tolerance and guidance. That was perfectl pond, indeed, commendable. the provid th can be said of the second abortive operation. The offer of r the teru portunity after further guidance was a further act of forbe ir conduc the appellant had still not provided that which he was require ation and had agreed to provide. to the n if, that fusal kr ert as a whole and on his actual refusal after the second abortive ng. It is immaterial that, initially, he agreed to give the spec on of an the result, he changed his mind before doing so and made his Di own by actions or words. The two abortive operations did not notes are he giving of a specimen of breath as required of him. Before gi phour specimen he made his refusal to do so known. There is no suggests (Re ar93 (sch if to off the Re the legislation in England is very different from ours the prince So the same and are summed up in Wilkinson's Road Traffic Offences In astagraph 193 in the supplement, as follows: the off cas scrition to administer a second breath test be administered only can a second breath test be administered ze Wright v Brohyn) but the constable has a discretion be administer a second breath test even if he could have tested the defendant for failing the first breath test anx ex v Broomhead [1975] RTR 558). This case followed in rel v Jordan; Hills v Nicholson (1983) The Law Society's Gazette p 157. In both cases the constable to be fair to the defendant gave him a further op opportunity to take a breath test; in the former case op the defendant partly inflated the bag on the first op occasion and was arrested on the second occasion when op tc y fully inflated the bag which then gave a positive op a ding; in the latter case the defendant who said he was op hmatic failed to inflate the bag on both occasions and op are arrested for failing to supply a specimen of breath on the second occasion. Both defendants were convicted of an ip] vi res together upheld the convictions. The power created both under s 6(1) and the Divisional Court hearing both op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op op
```html 985. Sir John Summerfield 7th March ``` ```latex \begin{table}[h] \centering \begin{tabular}{|c|c|} \hline
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