Area of Law – Driving – Drink Driving Offences

An Article about Prosecution must ensure intergrity of blood sample taken for drink driving offences

Whether failure to ensure integrity of blood sample taken pursuant to section 55 of the Road Safety Act, can support dismissal of charge under s. 49(1)(g) of the Road Safety Act 1987 ought to be dismissed?

In DPP v Colbey [2006] VSC 357, the Court held that a Magistrate was correct to dismiss a prosecution under s. 49(1)(g) as the only sample of blood taken was stored at Gippsland Hospital. The doctor who took the sample did not provide the Informant, or any other member of police, a sample of the blood taken. The prosecution could not lead any evidence as to the security measures in place at the hospital to exclude the possibility that the sample was tampered with, or that the conditons in which the sample was stored may have caused a deterioration of the sample.

As the medical practioner, responsible for taking and analysing the blood sample, had failed to provide the police informant with a copy of the sample, the provisons under s. 55 of the Road Safety Act 1986 had not been followed. The Court held that compliance with s. 55(9)(b) was mandatory and critical to a prosecution under s. 49(1)(g). The prosecution appeal was dismissed.


Date: 01/09/2009