Magistrate Comments On Testing Procedure

Press, Volume CX, Issue 32210, 31 January 1970, Page 15

Magistrate Comments On Testing Procedure

There were matters concerning the legislation for breath testing procedures that the authorities should give urgent attention to, Mr W. F. Brown, S JL, said in the Magistrate’s Court yesterday when dismissing a charge of driving with an excessive amount of alcohol.

The Magistrate took 45 minutes to give his reserved decision. Patrick Joseph Kelleher, aged 72, a retired woolsorter, had pleaded not guilty to the charge and was represented by Mr B. J. Drake. Outlining the evidence, the

Magistrate said a traffic officer had seen Kelleher after a minor accident about 11 p.m. on October 31 and had taken two breath tests which had proved positive. Kelleher had agreed to give a blood specimen and this had showed a concentration of 200 milligrams of alcohol per 100 millilitres of blood. Three points concerning the breath tests were raised by Mr Drake for the defence, said the Magistrate. They were the time between Kelleher’s last drink and the first test; the fact that he had been smoking; and a suggestion that the mouthpiece

bad been adjusted during the test The breath test equipment used was the Draeger Normalair Alcotest 80. Accompanying the equipment was a list of instructions including one that at least 20 minutes should elapse between the consumption of alcoholic drinks and using the equipment It also said that smoking during or immediately before the test should not be permitted. A booklet with the equipment enlarged on this by saving that a high concentration of tobacco smoke tended to colour the reagent brown. The Magistrate agreed with Mr Drake’s submissions that if the Alcotest was accepted it must be accepted with its instructions. He quoted recent legal authorities in support of this argument Not Mentioned

The Transport (Breath Test) Notice, 1969, which came into effect on May 1 last year did not follow the Alcotest instructions in all respects, said the Magistrate. There was no mention in the notice of a 20-minute lapse between drinking and testing being necessary. It appeared that the police or traffic officers were not required to ask when a defendant bad his last drink, and this created practical difficulties.

Under the terms of the breath test notice the police or traffic officers were required to “forthwith” ask for a breath test when a person was suspected of being affected by liquor. If a defendant said he had had his last drink five minutes earlier was the officei to wait for the required 20 minutes to elapse, and if the defendant declined to wait could he reasonably be held to have refused a blood test? “This is something to which I feel the authorities will have to give some urgent attention,” said the Magistrate.

He said his task was to decide the case on the law as it stood. There was some doubt about the time lapse between the defendant’s last drink and the first breath test so he held that the first breath test was not valid and the information was dismissed.

Although the charge had been dismissed because of doubt about the time factor Mr Drake’s other submissions should receive some comment, said the Magistrate. Heavy Smoker The evidence showed that Kelleher was a heavy smoker and that he had probably been smoking before the first breath test and afterwards. There was also some doubt about whether the mouthpiece had been adjusted during the test, and in this regard also the test was probably not valid. “Breath testing does seem to be placing quite a considerable burden on police and traffic officers who are to cover all requirements Of the notice and the instructions,” said the Magistrate. “It is important after the lapse of time since this legislation was introduced that certainty and simplicity be achieved so that all will ,know where they stand when it is being administered and proved.”