Alcohol test, the result most favourable to the driver always applies
The breathalyser test must always be carried out twice. This is what happens if one of the two results exceeds the limit beyond which there are more serious penalties
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Key points
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The Court of Cassation, in its judgment 24614/2025, returns to the question of which value is to be taken into account when the two measurements of blood alcohol levels required by law give discordant values. And it confirms the established orientation, for which the principle of favor rei prevails, whereby the lower of the two is to be considered. The case remains interesting, however, because it shows that even established principles can be disregarded in everyday practice and give rise to entangled legal situations.
The affair
.In this case, the first measurement showed a blood alcohol level of 1.56 g/l, the second one 1.32 g/l. Therefore, the first test would have triggered the maximum criminal sanctions laid down in Article 186(2)(c) of the Highway Code for blood alcohol levels above 1.5; the second would have triggered the less serious criminal sanctions laid down in Article 186(2)(b) for levels between 0.81 and 1.5. Therefore, when the driver was subjected to the alcohol test, he was in the phase in which the curve of absorption of the substance was in its descending phase (typical of when the intake did not occur immediately before).
If no one complained and proved the unreliability of the breathalyser used, this implies that the driver while driving had a higher rate than even the higher of the two values measured.
Mistakes and errors
.As far as it seems to emerge from the Court of Cassation's ruling, the Court of Appeal had followed an old orientation, which gives importance precisely to the absorption curve and thus in such cases assumes that the rate at the time of driving was higher, and therefore takes as good the first value measured by the breathalyser, the most unfavourable to the defendant.
Indeed, the rule on the two measurements (Article 379(2) of the implementing regulation of the Code) only states that they must be concordant, without any indication as to which one should prevail when the two values straddle a more serious and a less serious case. This would seem to support the view of the Court of Appeal.
