Area of Law – Driving – Drink Driving Offences

An Article about Police officer not to discourage request for blood sample

A police officer should not advise a person on whether or not to request a blood sample

The case of DPP v Moore [2003] VSCA 90 is authority for the point that police officers should not provide advice to persons about whether or not to obtain a blood sample. A police officer should nto discourage a person from requesting a blood sample on the basis that it might return a higher reading than the breath sample. owing a breath test.

Section 55(10) of the Road Safety Act 1986 provides a right of a person to request a blood sample be taken, after they have provided a breath sample.

In DPP v Moore [2003] VSCA 90 the Court of Criminal Appeal held that a Magistrate had correctly excluded the blood alcohol content certificate on the grounds that the police officer had improperly convinced the defendant not to request a blood sample, after the preliminary breath test returned a reading above the prescribed limit.

The defendant’s evidence to the Court was that the informant had told him that the blood sample would probably return a higher reading, and on this advice he decided not to request that a blood sample be taken. The Court held that the Magistrate’s decision to exclude the certificate was justified on either the public policy discretion discussed in Bunning v Cross, or the general unfairness discretion discussed in R v Swaffield; Pavic v The Queen [1998] HCA 1.


Date: 01/09/2009