Correct procedure

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Correct procedure

Postby cellboy » November 4th, 2011, 8:53 pm

Hi All,
I am in Adelaide and was pulled over 2 days ago by a policeman in a marked car after leaving my local hotel and subjected to a 'random' breath test which returned a positive result. He was parked opposite the hotel, and i saw him before i drove, but did not think i would be over 0.5.

Subsequent testing at the cop shop on their Dragar alcotest 7110 required 3 tests,which were all taken within 5 minutes
first test- 0.150
second test - insufficient sample
Third test 0.164

End result- charged with 0.150.

I was given the printout, but not a certificate stating that the operator was authorised to use the machine.
As i had not eaten all day, and was taking anti inflamitory medication, i opted for the blood test.

Due to the wait at the hospital, the blood test was not taken until almost 3 hours after the breath test.

I was also not given a vial of blood to have independantly tested. I enquired as to why and was told that it was normal for the hospital to send both samples to the police.

This is my first offence, and i am a believer in 'do the crime, do the time', but i believe the police station test must be wrong.
Without the blood sample, i am unable to have independant testing done to challenge the machine.

Another question : given that the breath analysis had risen by .014 in the space of 5 minutes, wouldn't it be fair to assume that at the time of driving, some 40 minutes earlier, the reading would be significantly lower?

Any advice would be much appreciated.
Posts: 5
Joined: November 4th, 2011, 8:25 pm

Re: Correct procedure

Postby SA lawyer » November 7th, 2011, 5:40 pm

The hospital should have forwarded two blood samples to the Forensic Science Centre for storage. You should be able to obtain one of the samples to have independently tested. If that did not occur you may have a defence to the charge.

The initial breath test which was conducted by police only gives an indication of a "positive" or "negative" result. The reading is not accurate and cannot be used in court. That is why they conducted the second set of breath tests. The change in the results from your initial reading to the formal recordings will not be of assistance in defending the charge.

However, you should be able to get your blood tested and have a back calculation done to determine what your blood alcohol level would have been at the time you were stopped by police.

In addition, it may be possible to negotiate with prosecution to downgrade your charge. Based on your reading, you will be charged with a category 3 offence which has a minimum licence disqualification of 12 months. You may be able to have this downgraded to a category 2 offence, which has a minimum licence disqualification of six months.

If you wish to obtain legal advice about these options, call and make an appointment with Yasmin McMahon at Caldicott & Co Solicitors, on 8298 2066.
SA lawyer
Posts: 1
Joined: November 7th, 2011, 1:39 pm

Re: Correct procedure

Postby cellboy » November 8th, 2011, 1:19 pm

Thanks for your reply Yasmin,
To clarify, both readings i mentioned were the formal readings conducted at the station. The result of the initial reading was not disclosed.
Anyhow, i will make an appointment to discuss this with you after i have recieved the blood test results.
Thanks again
Posts: 5
Joined: November 4th, 2011, 8:25 pm

Re: Correct procedure

Postby cellboy » November 15th, 2011, 1:22 pm

Hi Yasmin,
Received the blood test results today.

You were out of the office when i called so i thought i would post this here.
Posts: 5
Joined: November 4th, 2011, 8:25 pm

Re: Correct procedure update

Postby cellboy » May 14th, 2012, 1:21 pm

OK the washup of all this has been :
Charged with cat 2 at 0.149
Six month loss of license
$900 fine
Impond fees around $500

Just thought i would post the outcome.
Posts: 5
Joined: November 4th, 2011, 8:25 pm

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