Area of Law – Driving – Drink Driving Offences

An Article about Taking blood sample, whether must prove request for breath test first

A preliminary breath test has been taken which indicates the presence of alcohol. Must a request for a further breath sample be made immediately, as a pre-condition to a request for a blood sample?

The issue before the Supreme Court in McPherson v County Court of Victoria [2003] VSC 105, was whether it was compulsory for the Informant to request a further breath sample, or to present a breathalyser to the defendant for a further breath test, before a blood sample could be requested. The facts of the case first heard before a Magistrate were that the defendant had been intercepted by the police and after a preliminary breath test indicated the presence of alcohol above the prescribed limit, he was told to accompany the informant to the police station for a further breath test.

On the way to the police station the defendant complained of chest pains. The informant took him to the Werribee hospital. The informant relying on the apparent inability of the defendant to furnish a further breath sample, requested a blood sample pursuant to s. 55 (9A) of the RSA 1986. The defendant allowed the treating doctor to take a sample with his consent.

The blood sample was taken within 3 hours of driving and returned a a bac of 0.180 he was subsequently convicted and disqualified from driving. The defendant argued before the Supreme Court that it was an essential element to the offence under s. 49(1)(g) that a sample of breath be provided before moving on to request a blood sample. As this second breath test was not requested, or provided, an essential element of the offence was not established by the prosecution.

The Court rejected this agument and dismissed the appeal, holding that it was not an essential element for a prosecution under s. 49(1)(g) to prove a defendant had been requested to provide a breath sample before requesting a sample of blood. The Court held that once a person provided a preliminary breath sample which indicated the presence of alcohol in their system, that person remained under a continuing obligation to provide either a further breath sample, or blood sample if requested by the police.

The relevant excerpt from the judgement of the Court is as follows:

“It is apparent from the legislation that once the plaintiff provided a “positive” sample of breath into the preliminary breath test device pursuant to s.55(1) of the Act, he remained under a continuing obligation either to furnish a sample of his breath for analysis by a breath analysing instrument or alternatively and pursuant to s.55(9A) of the Act, to provide a sample of blood for analysis for a period of three hours after he was found driving a motor vehicle.

“In Day v County Court of Victoria and Hanson[15]. Smith J observed -“Sub-section 55(9A) is ancillary to (the other provisions containing s.55) and is drafted on these assumption of the continued existence of the entitlement of the police officer to require a breath test and of the obligation to submit to a breath test.”At the time the plaintiff was required by the Sergeant to provide the sample of blood for analysis, the Sergeant was entitled to require a breath test in accordance with s.55(1) and the plaintiff was under an obligation to submit to such breath test. In my view, the words “the person who required a sample of breath” – under sub-s.(1) or (2)” as they appear in s.55(9A) of the Act, are facilitative. They are designed to facilitate the person who requires a breath test under s.55(1) and/or s.55(2) of the Act to obtain a blood sample for analysis in the circumstances set out in sub-s.(9A). It is not necessary for the police officer to exercise such facilitative power by way of a demand or a specific stated requirement for a sample of breath in order to prosecute a person successfully under s.49(g) of the Act.”

Refer to the article on the Supreme Court case of Day v County Court of Victoria and Hanson, note that in that case the important difference was that the blood sample was taken after 3 hours of driving and accordingly was not under the same legal obligation. The sample for blood outside of 3 hours could only be taken with informed consent.


Date: 01/09/2009