Question
of the week Question of the week

Curious. Interesting. Informative.

31 January 2015

Every breath you take - Morning after PCA offence

Criminal Law
New South Wales

Asked

Hi, my client had his last of 10 stubbies of beer at 9:00pm. At 10:45 am the following day he was breathalysed and returned 0.053. He requested a blood analysis which was conducted at 13:30 and which resulted in a reading of .008. The Charge Sheet states 'He was of the opinion he was under the 0.5 limit and it was safe for him to drive'. This is my client's second 'morning after' PCA offence. No plea has been entered and the second court date is due shortly. How do suggest we proceed? Thank you.

Answered

The offence under s 110 Road Transport Act 2013 is driving with prescribed concentration of alcohol in breath or blood.

The taking of breath and blood samples and the use of certificates as evidence is dealt with in Part 5 Schedule 3 Road Transport Act 2013.

The breath analysis is conclusive of the concentration of alcohol unless there is some irregularity in the testing or certificate or the defendant proves a different concentration. The onus of proof is on the defendant.

Even if the blood analysis was taken within 2 hours, it would not of itself disprove the concentration of alcohol found to be in the breath.

The defendant will need expert evidence to prove (using the blood analysis) a different concentration of alcohol in the blood at the time of the event and that the concentration of alcohol in the blood determined by the expert is inconsistent with the concentration found in the breath. The court may be satisfied on that evidence that the defendant has disproved the breath analysis but equally it may not. It is not sufficient to just raise a doubt about the breath analysis. The onus is on the defendant.

Suggest matter be further adjourned without a plea in order to obtain expert evidence.

Regards Mentor