Want to challenge a Breath Analysis – Think Again

A recent decision by the NSW Court of Appeal, Bignill v DPP [2016] NSWCA 13,
has confirmed the validity of the breath analysis conducted at the police station
as evidence of the correct alcohol concentration at the time of it being conducted.

The matter was heard by the NSW Court of Appeal following an appeal from the
Supreme Court by the DPP setting aside an earlier decision of the Local Court
dismissing the low range PCA charge against Mr Bignill.

The facts are as follows:

• 9am – Mr Bignill stopped by police and subjected to a random breath test
  returning a positive result;
• 9:36am – Breath analysis performed at the police station returning an
  alcohol concentration of 0.054 grams of alcohol in 210 litres of breath;
• Mr Bignill requested a blood sample subsequent to the breath analysis
  result;
• 10:36am blood sample conducted revealing an alcohol concentration of
  0.049 grams in 100 ml of blood hence indicating a level below the

prescribed level of alcohol.
In the first instance, the Local Court Magistrate allowed the evidence of the blood
sample and dismissed the charge.

The DPP appealed the decision to the Supreme Court and the matter was
remitted back to the magistrate for redetermination.

Mr Bignill then appealed the Supreme Court decision to the Court of Appeal and
was unsuccessful with the Court of Appeal confirming the earlier decision of the
Supreme Court.

The Court of Appeal held that under the Road Transport Act 1909 (NSW), the
results of the blood analysis did not positively prove an alcohol limit at the time
of driving and hence not a preferred measure of the alcohol concentration over
the breath analysis.

The decision, obviously a relief to law enforcement, makes it clear that where the
breath analysis shows a reading above the legal limit, the onus falls on the
defendant to demonstrate that he/she was below that limit at the time the
breath analysis was conducted.

His Honour, Bathurst CJ, did set out two examples where the blood analysis
result worked as a safeguard to breath analysis namely [at 34];
1. 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…”
2. 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 the current matter at hand, 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 that the reading was
marginally lower some time after the original test.
Hence the appeal was allowed, but dismissed with costs.

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.

At CM lawyers, we have represented numerous clients in assisting them with
such matters and if you require any further information or assistance, please feel
free to contact our office.