Case law and legal doctrineCriminal lawThree rising breath-alcohol readings: why the acquittal was upheld

The facts and the procedural route

• Night-time preventive breath-alcohol checkpoint
• First test: 0.60 milligrams per litre of exhaled air
• Second and third evidential breathalyser readings: 0.79 and 0.75
• A rising pattern between the stop and the later readings
• Criminal Court: acquittal
• Provincial Court: prosecution appeal dismissed
• Supreme Court: cassation dismissed and acquittal upheld

The legal keys

• The offence requires the reading at the moment of driving, not of testing
• A rising pattern suggests the absorption phase and raises doubt
• Cassation against acquittals does not permit reassessment of the evidence
• The Public Prosecutor did not seek annulment of the judgment
• The established facts are integrated with reasoning favourable to the defendant
• Costs borne by the public purse

The relevant moment for the reading

Article 379(2) of the Criminal Code punishes anyone driving with an alcohol level above 0.60 milligrams per litre of exhaled air or 1.2 grams per litre of blood. The element of the offence refers to the instant of driving, not to the taking of the test. A period always elapses between the two, and during that period the alcohol concentration may rise if the body is in the absorption phase, or fall if it has already entered the elimination phase.

The blood-alcohol curve as a source of reasonable doubt

Here lies the core of the case. Where successive readings produce rising values, the natural inference is that the body was absorbing alcohol, so the reading at the earlier moment of driving would foreseeably have been lower than that recorded. The trial judge held that, the first reading being exactly 0.60, that is, the threshold itself, and the progression being upward, it could not be affirmed with the required certainty that the statutory limit was exceeded while driving. That inference is not arbitrary: it reflects commonly accepted physiological knowledge.

The limits of cassation against an acquittal

The second part of the ruling concerns procedural technique and is of general scope. The Supreme Court restates that cassation against acquittals does not permit review of the assessment of evidence made by the trial court. The Provincial Court had already observed that the prosecution’s argument was in reality a disguised reassessment of the evidence. The Supreme Court adds a decisive procedural point: the Public Prosecutor did not exercise the option of seeking annulment of the judgment, which was the appropriate route if the reasoning was thought insufficient or irrational.

Integrating the statement of facts with the legal reasoning

The Chamber further formulates a useful and little-known criterion: the statement of proven facts must be integrated with the considerations favourable to the defendant expressed in the legal reasoning, provided there is no doubt about their scope. In other words, where the reasoning states that a matter is not established, that statement forms part of the factual substrate even if it does not appear literally in the section on proven facts. This integration was decisive in upholding the acquittal.