Driver’s appeal of conviction dismissed
An attempt to overturn a conviction for refusal of a breath test has been rejected by the Supreme Court.
Safiyah Talbot claimed that she had told officers she would take the test after she had spoken to her lawyer. But Puisne Judge Shade Subair Williams said Talbot’s request for legal advice did not diminish the unlawfulness of her refusal to provide a breath sample.
Mrs Justice Subair Williams said: “This is the same logic which would apply to the commission of any other traffic offence.
“Where a person commits the offence of leaving a vehicle in a dangerous position, a request for access to a legal adviser before being made to change the position of the vehicle, cannot undo the criminality of the act of placing it in a dangerous position in the first instance.”
Magistrates’ Court heard that at about 6.50am on April 14, 2018, Sergeant Windol Thorpe was travelling on Wellington Road, St George’s, when he came across Talbot’s overturned car.
The vehicle had extensive damage to the front and three people were attempting to push the vehicle back on to its wheels.
Mr Thorpe told the court during the trial last October that he saw blood on Talbot’s lip and noticed that her breath smelled of alcohol. He also saw an open wine bottle and an unopened WKD bottle inside the car. Mr Thorpe told Talbot to stay where she was, but he had to detain her as she ran in the direction of her home.
Pc Kyle Outerbridge, who was also at the scene, arrested Talbot.
The court heard Talbot, now 37, at first told Mr Outerbridge she would provide a sample.
But she later told officers: “I will not take that test.”
Talbot was taken to Hamilton Police Station. Sergeant Paul Watson, another police witness, said he spoke to Talbot just before 8.30am and that she still refused to take a breath test. But he said that at about 8.50am Talbot said she wanted to speak with a lawyer and others.
She was allowed to make several calls and, just before 9.30am, Mr Watson said he received a call from Paul Wilson, her lawyer, who demanded that Talbot be allowed to provide a breath sample. But she was not allowed to take the test because of her earlier refusal.
Talbot told Magistrates’ Court that she had told Mr Watson she was willing to take the breath test, but only after she spoke to her lawyer — which the officer denied.
Talbot was convicted of refusal to provide a breath sample on October 4 last year and launched an appeal against the conviction. Bruce Swan, who represented Talbot in the Supreme Court, argued that a delay to receive legal advice was not enough to amount to a refusal to take a breath test.
He highlighted a Bermuda Police Service memorandum, which said that suspects can request legal advice before they gave a breath sample.
The memorandum said: “Any delay caused by the suspect seeking legal advice should be reasonable and should not extend beyond 30 minutes. Once the suspect has consulted legal counsel, or after a delay of 30 minutes — whichever occurs first — a further demand for a sample will be made.
“Any subsequent delay in agreeing to provide a sample will be interpreted as a refusal.”
But Mrs Justice Subair Williams said in her judgment, last month: “This court is not guided by the internal procedures or policies of the BPS, as helpful as they may be in carrying out the internal purposes for which they were created.
“I find that the delay caused by the appellant’s request to speak with her lawyer did not constitute a reasonable excuse for her failure or refusal to comply with the demands made of her at Red Coat Lane, and at Hamilton Police Station, for samples of her breath for analysis.”
She dismissed all grounds of the appeal.
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