Does a blood sample analysis carried out after an initial breath test operate as a constraint upon conviction resulting from the level of alcohol as determined by the breath analysis exceeding the statutory limit?
There is a common misconception that when you are arrested after a breath analysis, you can hold out for a blood test in the hope that by the time the test is taken, your alcohol reading will be below the statutory limit. The NSW Court of Appeal in Bignill v DPP  NSWCA 13, has shed light on the issue and has confirmed that the presumption that a test result establishes the blood alcohol level at the time of driving is available only to the prosecution and that it is a matter for the defendant to rebut it. Of course, the results of a blood analysis would be admissible for this purpose, but such results will only establish the blood alcohol level at the time of that test.
Here is a quick overview of the facts:
1. On 19 April 2014, Mr Bignill is driving a car on Clark Road in Neutral Bay. At:
9am: Mr Bignill is pulled over by a police officer. He submits to a random breath test which detects alcohol above the statutory limit. He is arrested and taken to North Sydney police station.
9:36am: A further breath analysis is performed, revealing an alcohol concentration of .054 grams of alcohol in 210 litres of breath. Mr Bignill makes a request under clause 21(1) of Schedule 3 of the Road Transport Act 2013 (NSW) (the Act) to have a sample of his blood taken by an authorised person.
Schedule 3 Clause 21(1) of the Act provides that a person who is required by a police officer to submit to a breath analysis may request the police officer to arrange an authorised sample of the person’s blood to be taken, in the presence of the police officer, to determine the concentration of alcohol in the person’s blood at that person’s own expense.
10:36am: Blood sample is taken and blood analysis reveals an alcohol concentration of .049 grams of alcohol in 100 millilitres of blood, being below the legal limit of .05 grams.
2. Mr Bignill is charged under section 110(3)(a) of the Act. At the Local Court hearing, the prosecution submits the results of the breath analysis while Mr Bignill submits the results of the blood analysis. The magistrate accepts Mr Bignill's argument that, pursuant to clause 31 of Schedule 3 of the Act, his blood alcohol concentration at the time of driving should be deemed to be 0.049. The charge is dismissed.
3. By summons filed on 17 December 2014, the Director of Public Prosecutions appeals to the Supreme Court. In DPP v Bignill  NSWSC 668 Adamson J holds that the deeming provision in the Act does not entitle Mr Bignill to have his blood alcohol concentration revealed by the blood test, deemed to be his blood alcohol level at the time he was driving. The primary judge allows the appeal, sets aside the order of the Local Court dismissing the charge against Mr Bignill, and remits the matter to the Local Court to be dealt with according to law.
By summons filed on 28 August 2015, Mr Bignill sought leave to appeal from the decision of the primary judge. This was granted.
The main argument advanced by Mr Bignill was that the right to a blood test operated as a constraint upon conviction resulting from the level of alcohol in a person’s breath as determined by breath analysis exceeding the statutory limit. Whether Mr Bignill could use the results of the blood analysis to prevent a conviction based on the results of the breath analysis was the primary issue on appeal.
Clause 31(3) of Schedule 3 of the Act provides that the concentration determined by a breath or blood analysis is taken to be the concentration in the person’s breath or blood at the time the person is required to submit to a breath test unless the defendant proves that at that time he or she was below the legal limit. So in this case, once the breath analysis was tendered showing a reading above the legal limit, the onus fell on Mr Bignill to demonstrate that he was below that limit at the time he was required to submit to the breath test. Mr Bignill sought to discharge that onus by tendering the blood analysis - which he was entitled to do by virtue of clause 31(2) of Schedule 3 of the Act.
In dismissing the appeal, the Court of Appeal held:
a) that there is no statutory basis for preferring the results of a blood analysis to that of a breath analysis and that the results of the blood analysis were not to be preferred to those of the breath analysis;
b) that once either a breath or a blood analysis showing an alcohol concentration over the statutory limit is tendered, the offence is established. This then produces a rebuttable presumption that alcohol concentration at the time the defendant was required to submit to a breath test was above the statutory limit. However, the onus is not satisfied merely by tendering the result of a test which provides a reading below the statutory limit – the defendant must prove that the concentration of alcohol was below the statutory limit at the time he or she was required to submit to a breath test.
IS THERE A POINT IN REQUESTING A BLOOD SAMPLE TO BE TAKEN?
The Act confers upon a person who has been asked to submit to a breath test, a right to obtain a blood analysis. His Honour Bathurst CJ confirms [at 34] that the right to obtain a blood analysis does operate as a safeguard to a person required to submit to a breath analysis and sets out the following two examples where the results of a blood analysis can assist:
a) If the blood analysis produces a result radically different to the breath analysis it may raise doubt that the breath analysis instrument was in proper condition and properly operated so as to require evidence of the condition of the breath analysing instrument, or of the manner in which it was operated.
Clause 35(4) of Schedule 3 of the Act provides that evidence of the condition of a breath analysing instrument, or of the manner in which it was operated, is not required unless evidence sufficient to raise doubt that the instrument was in proper condition and properly operated has been adduced.
b) 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, the defendant will have discharged the onus cast on him or her. In this matter, the blood analysis result was consistent with Mr Bignill being over the legal limit at the time of the breath analysis as the blood analysis was carried out sometime after the original breath analysis and it was reasonable that the reading was lower.
One should still request a blood analysis if there is any doubt as to the correct reading, but the results should be carefully studied and viewed in light of the circumstances of the case before the results of the analysis are tendered as evidence.
If you have been charged with a PCA offence, it is important that you obtain competent legal advice as soon as possible. Our lawyers will guide you through the entire process and represent you in court for a fixed fee.