More recently in De Freitas v DPP (1992) The Times, 8 July, the defendant had been stopped while driving his motor vehicle and required to provide a specimen of breath. He did so by cupping his hand over the mouth- piece of the breath testing device but without actually putting his mouth on the mouthpiece.

The test was positive and the defendant was arrested and taken to the police station where he was required to provide two further specimens of breath. He was prepared to provide the specimens as earlier but that was unacceptable to the officer.

The Crown Court found that the defendant had long had an obsession with his health ad a particular fear of becoming infected with the AIDS virus. The court found that he genuinely had a phobia that led to him to refuse to place his lips on the mouthpiece, notwithstanding that the mouthpiece was sterile.

Watkins LJ; said he reluctantly came to the conclusion, that the Judge, having accepted the medical evidence as to the defendant's phobia could not go on later to express the view that the phobia was an obstinate and absurd belief.

It is a relief to see that Watkins LJ: went on to say that it could not be often that anyone could succeed in persuading a court that he had a reasonable excuse for not providing specimens of breath by claiming a phobia.

Mr Fountain in 1987 should have been more forceful, had his view been an obsession he might have succeeded.

Mr De Freitas is quoted in Police Review, 26 June 1992, as saying, "People might think it's a joke, but if everyone was like me there wouldn't be an AIDS problem" Perhaps a thought on the lips of many would be, "if people didn't drink alcohol and drive at the same time they wouldn't finish up in court. Lets us hope that common sense prevails and this case does not set a dangerous precedent.

Rob Jerrard