The drink driving trial of England cricketer Graeme Swann will go ahead despite his solicitor arguing a sample of blood used as evidence was unlawful, a district judge ruled.
Off-spinner Swann, who is with the England team contesting the Ashes series in Australia, was stopped by officers on patrol in the West Bridgford area of Nottingham on April 2 and later charged with drink driving.
At a previous hearing Nottingham Magistrates' Court heard how he had enjoyed three or four glasses of white wine earlier in the evening to celebrate his birthday.
When he returned to his £350,000 detached house in West Bridgford, Nottinghamshire, he found one of his and wife Sarah's two cats stuck under the floorboards after builders had been working on their home.
Unable to find a screwdriver to undo the floorboards, Swann decided to drive his new white Porsche Cayenne to the nearest 24-hour Asda to buy a set of screwdrivers, the court heard.
At Nottingham Magistrates Court today Phillip Lucas, Swann's solicitor, argued for no case to answer because he said that of two samples of blood taken from Swann on that night, it was the second that was analysed when the first was suitable for testing.
This meant that the second sample, which showed Swann's blood had 83mg of alcohol in 100ml of blood, which is over the legal limit of 80mg, was unlawful because the first sample should always be used if suitable, Mr Lucas said.
He also said Swann had consented to giving the first sample of blood but not the second.
After listening to half a day's legal submissions from Mr Lucas and prosecutor Tara Kelly, District Judge Julia Newton decided Swann's trial should go ahead.
She said: "Having considered everything that's been said it seems to me that there is a case to answer.
"In my view it would be open to a court to find that the second extraction of blood taken from Mr Swann was taken in accordance with statutory regulations and it is also open to the court to find that Mr Swann consented to that sample being taken."
The argument for no case to answer came after nurse Lisa Hodgkinson took two samples of blood from Swann that night.
At an earlier hearing she told the court she took a second sample because the first was only 2ml and she believed she needed at least 4ml for analysis, so took a second 5ml sample.
Mr Lucas argued that evidence from Sylvain Denaeul, the forensic toxicologist who analysed Swann's blood sample, showed that the first sample may have been enough for testing.
He told the court: "The burden is on the Crown to show the first extract was incapable of analysis. If the first extract may have been capable of analysis the second is unlawful and may not be relied upon."
Swann's case was listed for a further two day hearing at the court and adjourned until February 15.Reuse content