Drink Driving Blood Tests
When Can Police Request a Blood Test For Drink Driving?
In circumstances where a driver has been hospitalised and has been in an accident.
When can someone request a drink driving blood test?
- A motorist can request a drink driving blood sample following their participation in an EBT (Evidentiary Breath Test), that has produced a reading over the prescribed content of alcohol.
- Regardless of the result of the blood test, the police will usually prosecute a motorist on the basis of the EBT result because by the time a nurse can attend the scene to take blood, the reading may have changed drastically.
- However, motorists that have been tested by police for drink driving using an evidentiary breath testing machine always have a right to request a blood test to verify that reading. When police do not follow up a motorist’s request to obtain a blood sample, often because it can take a long time, this can and often does amount to a defence.
Possible defences to a drink driving blood test
- Did you drive or were you in control of a motor vehicle while under the influence of alcohol?
- What was your blood alcohol concentration within 3 hours of driving or being in charge of a motor vehicle?
- Was it at or above the limit?
- Was the result due to alcohol consumed solely after driving?
Which of the following blood alcohol concentration readings show your driving is impaired by alcohol?
- In Australia, a BAC over 0.05% is considered to impair driving, as per the Australian Government’s guidelines.
- In the United States, the legal driving limit is 0.08% in most states. However, scientific literature suggests that impairment becomes dangerously significant at this level.
Scientific Findings on BAC Levels:
- 0.20–0.50% BAC: While this range may produce pleasurable effects, studies indicate it can also cause some degree of impairment, albeit minor.
Enforcement in Victoria, Australia:
- Motorists with full licences found with a BAC 0.05% or over are charged with a drink driving offence.
- Motorists found to be 0.15% are often charged with Driving Under the Influence (DUI) due to the level of impairment that occurs.
- This is supported by findings from forensic expert Dr. Morris Odell, who has consistently reported that at this level, drivers are unable to maintain proper control of a motor vehicle.
Pronounced Effects at Higher BAC Levels:
- Any reading over 0.20% is widely recognised to cause significant mental and physical impairments, making safe vehicle operation impossible
The offence:
- It is an offence against the Road Safety Act 1986 (RSA) section 49(1)(g) to furnish a sample of blood, taken in accordance with section 55, 55B, 55BA, 55E or 56, that detects the prescribed concentration of alcohol (PCA) or more than the prescribed concentration of alcohol within 3 hours of driving or having been in control of a motor vehicle if the alcohol present was not due to alcohol imbibed after driving or being in charge of a motor vehicle. The sample of blood must be analysed by a properly qualified person within 12 months after it was taken by a properly qualified person.
- Under section 55 of the RSA the police can request a person submit to the collection of a blood sample for analysis if it appears that the person is unable to furnish the required sample of breath on medical grounds or due to a physical disability or if the instrument used to analyse breath is incapable of measuring the concentration of alcohol present for any reason. The police can require that a person accompany them to a place where the sample can be taken and remain there until it is taken or until 3 hours has lapsed since they were a driver or occupant in a motor vehicle. A person who does as requested in these circumstances will not be charged with any refusal offence.
- Section 55B states that if a person undergoes an assessment for drug impairment and in the opinion of the officer carrying out the assessment it indicates that person is impaired by a drug, they may require the person to furnish a sample of blood for analysis.
- Section 55BA relates to incidents when a person has been the driver or passenger in a motor vehicle involved in an accident that resulted in death or serious injury. The section applies if the police reasonably believe a person has been involved in such an accident, the police can direct that that person has a sample of blood taken by an approved person for analysis. The person may be required to accompany the police to a facility where the procedure can occur or it may occur during hospital treatment.
- Pursuant to section 56 of the RSA blood samples are to be taken in certain circumstances. If a person of or over the age of 15 years enters or is brought to a place for examination or treatment in consequence of an accident (whether within Victoria or not) involving a motor vehicle, the person must allow a doctor or approved health professional to take from that person at that place a sample of that person’s blood for analysis. A person must not hinder this process. And a person who is unconscious or unable to communicate is assumed to allow the taking of the sample.
In order to make out an offence against s 49(1)(g) it must be shown that:
- A person drove or were in charge of a motor vehicle;
- That the person was lawfully requested to provide a sample of blood for analysis for alcohol concentration in accordance with one of the sections of the RSA mentioned in the above paragraph;
- That the person consented to the collection of the sample for analysis; (If they dont this can result in other charges)
- That the sample collected within three hours since the person last drove;
- That the blood sample was taken in accordance with proper procedure and by a person authorised to take the sample;
- The analysis was undertaken within 12 months of the sample being collected;
- The results of the analysis indicated the person tested met or exceeded the PCA (0.05 or above for open drivers, or above 0.00 if a learner or probationary driver); and
- The reading was not due solely to alcohol consumed after driving or being in charge of a motor vehicle.
The police must satisfy procedural requirements such as the police advising the person of their obligation to remain in place for up to 3 three hours, using the prescribed equipment operated by the authorised people, and providing clear instructions.
If a person does not comply with a request to provide a sample of blood, they can be charged under sections 49(1)(d), (e) or (ea) for refusing the requirement. These charges often carry much more severe penalties.
Please read below for more information relating to this charge.
The Legislation
Section 49(1)(g) of the Road Safety Act 1986.
The prosecution must show that:
- The defendant was driving or in charge of a motor vehicle within the 3 hours prior to providing a blood sample for analysis; and
- The sample was taken in accordance with sections 55, 55B, 55BA, 55E or 56; and
- The defendant had a prescribed concentration of alcohol at or above the prescribed level in the blood sample; and
- The concentration at the time of testing was not due solely to t the consumption of alcohol after driving or being in charge of a motor vehicle.
The definition of “prescribed concentration of alcohol” is found in s 3(1) RSA.
Please read below for more information relating to this charge.
The penalty for failing a drink driving blood test
If found guilty of an Offence Involving Alcohol or Other Drugs: exceeding the PCA within three hours of driving the maximum penalties are –
- For a first offence, a fine of 20 penalty units.
- For a second offence:
- Where BAC is less than 0.15 a fine of 60 penalty units or a term of imprisonment of 6 months.
- Where BAC is 0.15 or more a fine of 120 penalty units and imprisonment for a term of 12 months.
- For a third or subsequent offence:
- Where BAC is less than 0.15: a fine of 120 penalty units and imprisonment for a term of 12 months.
- Where BAC is 0.15 or more a fine of 180 penalty units and imprisonment for a term of 18 months.
Further, pursuant to section 50(1A), if a person is convicted or found guilty of an offence against section 49(1)(g) for exceeding PCA (blood analysis) within 3 hours of driving, the court must suspend that person’s driver licence or learner permit, and disqualify them from driving for a minimum period as set in Schedule 1 of the RSA. Schedule 1 outlines the disqualification periods for exceeding the PCA within 3 hours of driving on a first or subsequent offence. The periods are between 3 – 48 months.
If found to be driving under the influence of alcohol or other drugs you may be required to undergo a behavioural change program. Participation in these programs in determined by VicRoads.
Where will my case be heard?
Driving Offences Involving Alcohol or other Drugs: Exceed PCA within 3 hours of driving (blood analysis) cases will be heard will be heard in the Magistrates Court.
What to do next? Get a Drink Driving Lawyer!
If you have been charged with exceeding the prescribed concentration of alcohol within 3 hours of driving (blood analysis) in contravention of section 49(1)(g) of the RSA and if your driver’s licence is important to you, don’t go to court unrepresented. Consider how much it will cost you to be disqualified from driving for months or years. If you have previously committed an offence relating to drink driving, the penalties will be more severe, you may receive a term of imprisonment along with fines and license disqualification.
If you have been charged with an offence under 49(1)(g) a police officer may suspend your licence immediately, as per section 85 of the RSA. This would mean you cannot drive until your matter has been determined at court, but this suspension can be appealed while awaiting the court hearing for the alleged offence.
Magistrates’ take drink driving very serious so you should engage solicitors that appear in traffic offence matters regularly; Dribbin & Brown Lawyers are experienced in handling these types of matters. We regularly appear in court to represent people charged with driving offences. If you have been charges, call our office today.
The Legislation:
Section 49 Offences involving alcohol or other drugs
(1) A person is guilty of an offence if he or she—
- (g) has had a sample of blood taken from him or her in accordance with section 55, 55B, 55BA, 55E or 56 within 3 hours after driving or being in charge of a motor vehicle and—
- (i) the sample has been analysed within 12 months after it was taken by a properly qualified analyst within the meaning of section 57 and the analyst has found that at the time of analysis the prescribed concentration of alcohol or more than the prescribed concentration of alcohol was present in that sample; and
- (ii) the concentration of alcohol found by the analyst to be present in that sample was not due solely to the consumption of alcohol after driving or being in charge of the motor vehicle; or
(2A) A person who is guilty of an offence under paragraph (b), (f) or (g) of subsection (1), other than a supervising driver offence, is liable—
- (a) in the case of a first offence, to a fine of not more than 20 penalty units; and
- (b) in the case of a second offence—
- (i) to a fine of not more than 60 penalty units or to imprisonment for a term of not more than 6 months if the concentration of alcohol—
(A) in the person’s blood was less than 0·15 grams per 100 millilitres of blood; or
(B) in the person’s breath was less than 0·15 grams per 210 litres of exhaled air—
as the case requires; or
- (ii) to a fine of not more than 120 penalty units or to imprisonment for a term of not more than 12 months if the concentration of alcohol—
(A) in the person’s blood was 0·15 grams or more per 100 millilitres of blood; or
(B) in the person’s breath was 0·15 grams or more per 210 litres of exhaled air—
as the case requires; and
- (c) in the case of any other subsequent offence—
- (i) to a fine of not more than 120 penalty units or imprisonment for a term of not more than 12 months if the concentration of alcohol—
(A) in the person’s blood was less than 0·15 grams per 100 millilitres of blood; or
(B) in the person’s breath was less than 0·15 grams per 210 litres of exhaled air—
as the case requires; or
- (ii) to a fine of not more than 180 penalty units or to imprisonment for a term of not more than 18 months if the concentration of alcohol—
(A) in the person’s blood was 0·15 grams or more per 100 millilitres of blood; or
(B) in the person’s breath was 0·15 grams or more per 210 litres of exhaled air—
as the case requires.
(5) It is a defence to a charge under paragraph (g), (h), (i) or (j) of subsection (1) for the person charged to prove that the result of the analysis was not a correct result.
(6) In any proceedings for an offence under paragraph (f), (g) or (j) of subsection (1) evidence as to the effect of the consumption of alcohol on the accused is admissible for the purpose of rebutting the presumption created by section 48(1A) but is otherwise inadmissible.
(7) On convicting a person, or finding a person guilty, of an offence under subsection (1) the court must cause to be entered in the records of the court—
- (a) in the case of an offence under paragraph (b) of subsection (1), the level of concentration of alcohol found to be present in that person’s blood or breath; and
- (b) in the case of an offence under paragraph (f) of subsection (1), the level of concentration of alcohol found to be recorded or shown by the breath analysing instrument; and
- (c) in the case of an offence under paragraph (g) or (j) of subsection (1), the level of concentration of alcohol found to be present in the sample of blood.
