DUI. Breath Test or Blood Test – Can you choose?
Breath Test v Blood Test
Drink driving one of most common offences to come before the Courts on the Central Coast & the Newcastle regions.
If you have been caught drink driving you may have undergone both a breath test and a blood test to determine your blood alcohol concentration. So, what happens if those readings are different?
Bignill v DPP (2016)
This was indeed the difficulty faced by Mr Bignill who was caught by the police with a blood alcohol level of 0.054 during a breath analysis at North Sydney police station.
Mr Bignell requested that a blood sample be taken which ultimately turned up with a blood concentration level of 0.049 which was less than the statutory standard of 0.050 to ground a PCA driving offence.
Mr Bignell submitted the blood test results to the Courts and the Police Prosecutor submitted the breath analysis results. The Magistrate at first instance decided to dismiss the charge based on the lower results delivered in the blood test.
The Court of Appeal
As this matter raised a general question of public importance the Director of Public Prosecutions decided to take the matter to the Court of Criminal Appeal which is the highest Criminal Court in the state of New South Wales.
The Court of Criminal Appeal decided that there was no statutory reason to prefer the blood test over the breath test. Accordingly, Mr Bignill could be found guilty of a PCA offence on the basis that once either a breath or blood analysis is tendered showing an alcohol concentration over the statutory limit, the offence is established.
Why bother with a blood test?
His Honour, Bathurst CJ, did set out two examples where the blood analysis result worked as a safeguard to breath analysis namely [at 34];
- If the blood analysis “produced a result radically different to the breath
analysis it may raise doubt that the breath analysis instrument was in
proper condition and properly operated…”
- If the blood analysis “produced a result which could be shown by expert
evidence to be inconsistent with a driver being over the legal limit at the
relevant time for the purpose of clause 3, the defendant will have
discharged the onus cast on him or her.”
In Mr Bignall’s matter, the blood analysis result was consistent with the breath analysis at the time of the reading as some time had passed from the original breath analysis result. It was reasonable to expect that the reading would be marginally lower some time after the original test.
As a result, whilst one should still request a blood analysis if there is any doubt as to the correct reading, the results should be carefully scrutinised and the overall circumstances taken into account before tendering such evidence. For example, the result may be used in assistance in plea mitigation submissions on sentencing including an argument for a dismissal by way of section 10.
If you have been issued with a Court Attendance Notice to face a drink driving charge you should seek legal advice as soon as possible to ensure the best possible outcome.
A copy of the decision referred to in this article may be seen at NSW Case Law | Bignill v DPP (2016)