Area of Law – Driving – Drink Driving Offences

An Article about Consequences of a police officer not informing of right to obtain a blood sample

What consequences (if any) arise from the failure of a police officer to inform a person they have the right to challege a breath test by providing a blood sample?

The ability to request a blood sample, after providing a sample of breath for analysis, is provided under section 55(10) of the Road Safety Act 1986. Does an informant’s failure to inform a person that they may request a blood sample, have any adverse impact on a prosecution for a drink driving offence

The issue came before the court in Johnson v Poppeliers [2008] VSC 461. The defendant was intercepted by the informant, provided an evidentiary breath test of 0.155% and remarked to the informant, that he was surprised it was so high, but did not request a blood test.

The informant did not advise the defendant that he could request a blood sample.

The argument raised by the defendant was that the bac certificate ought to have been excluded on the grounds of unfairness or improper conduct by the police officer in failing to inform him that if he was surprised at the high reading, and wanted to challenge his earlier bac reading, he could request a blood sample.

The Court distinguished the facts of another case, in which the informant had discouraged the driver from taking a blood test, on the basis that the blood test might return a higher reading. However, on the facts of the case before the Court, there was no improper conduct or unfairness to the driver.

Accordingly, the Court held that the mere fact that the informant had not informed the defedant that he could request a blood sample, did not render a bac cetificate otherwise lawfully taken invlalid on teh grounds of unfairness/improper police conduct.


Date: 01/09/2009