Pandora’s Box Opened: Many DUI Charges Could Now Be Challenged After Prosecution Was Unable To Produce Manufacturer’s Manual To Establish Credibility Of Results Produced By Breath Testing Machine
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By Alric Lindsay
In a surprising development in the Summary Court today, February 13, 2025, Kenneth Ferguson, Crown Counsel with the Office of the Director of Public Prosecutions, withdrew a DUI charge against a woman after being hopelessly unable to obtain the manufacturer’s manual for the intoxilyzer machine used by the Royal Cayman Islands Police Service for breath testing. Defence counsel Clyde Allen previously requested the manual as a disclosure point and to establish whether officers using the breath testing machine were operating it properly and obtaining valid results. If other persons currently before the courts challenge their DUI charges on the same basis, Pandora’s box could be effectively opened. That is, there could be a wave of reversals of DUI charges if the courts determine on a case-by-case basis that the manual is a material factor in determining if the results produced by the breath testing machine are credible.
Background
As mentioned in a previous story, the Summary Court ordered Crown Counsel to provide a copy of the manual to defence counsel in 2024. Crown Counsel breached the order by failing to produce the manual on January 14, 2025.
Crown Counsel was meant to contact the manufacturer and return to the Summary Court today to provide the defence counsel with a copy of the manual. Unfortunately, Crown Counsel continued to breach the Summary Court order today by failing to obtain and disclose the manual.
When asked why the manual was not produced, Crown Counsel said that the manufacturer “refused” to give it to the Royal Cayman Islands Police Service. The bizarre situation perceivably left Crown Counsel facing two predicaments: facing dire consequences from the Chief Magistrate for a continued breach of her Summary Court order and being unable to provide the manual to establish the validity of the breath tests produced by the intoxilyzer machine. After weighing the circumstances facing him, Crown Counsel withdrew the DUI charge.
The withdrawal resulted in the Chief Magistrate dismissing the matter, returning the woman’s driver’s licence to her and reversing her interim disqualification from driving.
This case is significant as it begs the question why the Office of the Director of Public Prosecutions continues to face no consequences for breaches of Summary Court Orders. It also invites many people now facing DUI charges to challenge the validity of the breath tests and the credibility of the intoxilyzer machine.
Note to readers:
To read more about questions that could be raised about the breath testing machine because of the absence of a manufacturer’s manual, please see our previous story below:
