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When the Victoria police failed to have an officer observe a blood draw, the breath test results were excluded from evidence

Breath tests using a breath analyzer (as opposed to a preliminary breath test device) are generally regarded as accurate, but they are not as accurate as blood tests. For that reason, Victoria law gives an accused the right to a blood test if the accused first complies with the requirement to submit to a breath test.

A magistrate in Victoria decided in favor of an accused who was charged with a drink driving offence because the police failed to follow the letter of that law.

Facts of the case

In Police v. Connell, a driver was given a preliminary breath test. Based on the test result, he was taken to a breath testing station where he submitted to a test using a breath analyzer. The result exceeded 0.11 percent, well above the legal limit of 0.05 percent.

The accused then asked for a blood test. A forensic nurse examiner attempted to draw his blood. What happened next is disputed, including whether the nurse examiner tried once or more than once to draw blood and whether she was prevented from doing so by the actions of the accused. In any event, no blood was drawn. No police officer was in the room while the blood draw was attempted.

The law in Victoria

Any person who fails a preliminary breath test may be taken to a police station or other location for testing using a breath analyzer. After that test is complete and the results are certified, the person who was tested has the right to request a blood test at his or her own expense. If the request is made, the police must take the accused to an approved health professional to draw that person’s blood. The statute requires that a police officer be present while the blood is drawn.

The court’s decision

The magistrate concluded that the police must arrange for a blood sample to be collected when the accused makes an appropriate request for a blood test, and that the police must be present when the blood is collected. If the police had followed that requirement, they could have provided evidence to help settle the dispute about why the blood sample was not drawn. Being nearby but not in the same room did not constitute being “present” because the officers could not see the blood being drawn.

The magistrate decided it would be unfair to the accused to use the breath test against him when he was unable to obtain a blood test to challenge it. The court therefore excluded the breath test from evidence. Since that was the only evidence against the accused, the court dismissed the charge.

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

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