Breath and Blood Testing
When it comes to police testing of breath and blood samples, there are strict rules that need to be followed by police. If they’re not followed, it can call into question the veracity of the sample. In some cases, this may mean that the breath or blood sample can’t be used as evidence by the police to prove a drink driving charge against you.
This is an area in which it really helps to understand your rights. Here’s what you need to know.
What powers do police have to test?
Police can require a person to submit to a test. They can stop a vehicle to perform random breath testing on any driver.
Police also have the power to set up roadside driver testing stations.
The roadside test is known as an Alcotest. If an Alcotest registers positive for alcohol in the breath of a driver, the police have the power to require the driver to submit to a further test, known as a breath analysis test.
Police can require a person to submit to an Alcotest in a number of circumstances. In some cases they will require a breath sample when they believe (on reasonable grounds) that a person has driven a motor vehicle, even if they weren’t driving when stopped by police. Police have the power to require a sample of breath for up to 8 hours after the alleged act of driving.
If you are tested more than two hours after driving, there are complicated rules governing how the police may use these results in evidence. In these circumstances, you should seek legal advice from an Adelaide traffic lawyer as soon as possible.
Can I refuse a breath test?
It is an offence to refuse or fail to comply with a police direction to submit to an Alcotest or breath test. If a person suffers from a genuine medical condition that prevents them from being able to comply with the direction, they must give a blood test.
Penalties for this offence can include a fine and licence disqualification.
What if I’ve had a drink after driving?
Sometimes, police will require a breath sample many hours after driving. If you drink alcohol after driving but before giving the breath sample, you should seek legal advice immediately. It may be that you can dispute the breath test, or be charged with a lesser offence.
If the driver was involved in an accident, they can rely on the defence of subsequent drinking only if they have complied with all the obligations of a driver who has been involved in a car accident, for example:
- The requirement to stop.
- The requirement to give assistance.
- The requirement to exchange names, addresses and other important information.
Do I need to submit to a blood test?
The law assumes that a breath analysis result is accurate. It also assumes that the reading was the same as the person’s blood alcohol level for the two hours before the test was taken. This presumption can be challenged in Court with a blood test result.
Where a breath analysis indicates the driver is over the limit, the police must advise the driver of their right to have a blood test. If a driver chooses to have the test, the police will provide a blood testing kit. The kit contains a statement of the person’s right to have a blood test together with instructions to both the person and a doctor on the blood sampling procedures.
Generally, drivers must make their own arrangements to have the blood sample taken at a hospital.
The doctor (or nurse) has to divide the sample into halves, giving one sample to the person and forwarding a second sample to the police. The police sample will be analysed and the results sent to the driver, who can have the other sample tested independently. If this is intended, it is important that the sample be kept in a cool place and analysed as soon possible.
You should seek legal advice if the blood test result is significantly different from the breath analysis but keep in mind that a blood test will often show a lower reading than the earlier breath analysis. This is because over time, the driver’s blood alcohol is eliminated.
If there has been an accident, a doctor must take a blood sample from a person in circumstances where the person:
- Is aged 10 years or more; and
- Is injured in an accident; and
- Goes to a hospital for treatment of that injury.
If you are the driver of a vehicle that is involved in an accident, you may face further charges, including driving without due care, or more serious offences, for example causing injury or death by dangerous driving.
Most insurers won’t pay for damages where the driver was under the influence of alcohol or drugs at the time of the accident.
If you’ve been charged with a drink driving offence, you’ll need expert legal representation as soon as possible. Websters Lawyers has an outstanding team of traffic lawyers who can assist you. Contact us today for a free initial consultation.
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