Area of Law – Driving – Drink Driving Offences

An Article about Failure to provide driver a copy of the bac certificate

You provide a breath sample at a breath-testing station, but you are not handed a copy of a certificate stating your bac level. Will this render the charge defective?

In the case of Johnson v Poppeliers [2008] VSC 461, one of the issues for the Court to determine was whether failure to hand the driver the certificate evidencing his bac reading of 0.155% was a necessary element of the offence under s. 49(1)(f) of the Road Safety Act. The defendant argued that section 55(4) of the Road Safety Act stipulated that he was to receive a copy of the blood alcohol content certificate, and the failure to hand him the certificate meant the prosecution had not established a necessary element of the offence. He argued that the Magistrate should have excluded the certificate on the basis of the police officer’s failure to comply with the Act, or on the basis of unfairness.

The Court followed the ealier case of Furze v Nixon (2000) 2 VR 503 and held that the provison of the certificate to the driver was not a “precondition to establishing the offence under s. 49(1)(f) and it is therefore difficult to see how an inadvertent failure to give a certificate, without more, can enliven the unfairness discretion to exclude the certificate”.

 

Date: 01/09/2009