Pathology Reports and Incorrect Breath Analysis Results
Breath analysis is provided for under the Road Transport (Safety and Management) Act 1999 as the technique which may be used to determine whether a driver has exceeded the prescribed concentration of alcohol which may be allowed for while driving. Following an arrest for a drink driving offence under s14 of the Act, a driver may be required by police to submit to a breath analysis following arrest under section 15(1) of the Act. The police officer must then provide the arrested driver with a written statement which contains the date and time of the breath test and the concentration of alcohol determined by the breath or blood test which was found to be present in the driver’s blood or breath at that time.
Where a person believes that the reading which was recorded on the breath analysis is actually incorrect, they may be able to apply s18.
Under section 18 of the Act:
- A person who is required under section 15 (1) to submit to a breath analysis may request the police officer making the requisition to arrange for a medical practitioner to take, in the presence of a police officer, a sample of that person’s blood, for analysis in accordance with this section at that person’s own expense
- The medical practitioner must, as soon as reasonably practicable after the sample of blood is taken, arrange for the sample to be submitted to a laboratory prescribed by the regulations for analysis by an analyst to determine the concentration of alcohol in the blood.
- The person from whom the sample was taken may, within 12 months after the taking of the sample, apply to the laboratory prescribed under this section for a portion of the sample to be sent, for analysis at that person’s own expense, to a medical practitioner or laboratory nominated by the person.
Where this reading is conclusive that the breath analysis reading was incorrect, this may be used by the driver as evidence that they in fact had not exceeded the prescribed content of alcohol.
For further information call one of our experienced Criminal Law solicitors for some free telephone advice on (02) 9525 8688
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Kevin Dwyer
manages the Criminal Law Division of Warren McKeon Dickson Lawyers. Kevin regularly attends Sutherland and Sydney Local Courts as well as courts all along the South Coast on all criminal matters. Kevin has over 10 years experience working in criminal law and can assist you with your defence to any criminal charges or driving offences, licence appeals, bail applications in the Local District and Supreme Court as well as conducting Appeals on convictions and sentencing to the District Court or Court of Criminal Appeal ...read more
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