South Australian Current Acts South Australian Current Acts (1) Without affecting
the admissibility of evidence that might be given otherwise than in pursuance
of this section, evidence may be given, in any proceedings for an offence, of
the concentration of alcohol indicated as being present in the blood of the
defendant by a breath analysing instrument operated by a person authorised to
operate the instrument by the Commissioner of Police and, if the requirements
of this Act in relation to breath analysing instruments and breath analysis,
including subsections (5) and (6), have been complied with, it must be
presumed, in the absence of proof to the contrary, that the concentration of
alcohol so indicated was present in the blood of the defendant at the time of
the analysis and throughout the preceding period of 3 hours.
(2) No evidence can be
adduced in rebuttal of the presumption created by subsection (1)
except—
(a)
evidence of the concentration of alcohol in the blood of the defendant as
indicated by analysis of a sample of blood taken and dealt with in accordance
with Schedule 1A or in accordance with the regulations; and
(b)
evidence as to whether the results of analysis of the sample of blood
demonstrate that the breath analysing instrument gave an exaggerated reading
of the concentration of alcohol present in the blood of the defendant.
(3) If, in any
proceedings for an offence, it is proved—
(i)
operated a vessel; or
(ii)
was a member of a crew of a vessel that was being
operated and was or ought to have been engaged in duties affecting the safe
navigation, operation or use of the vessel; and
(b) that
a concentration of alcohol was present in the defendant's blood at the time of
a breath analysis performed within the period of 3 hours immediately
following the conduct referred to in paragraph (a),
it must be conclusively presumed that that concentration of alcohol was
present in the defendant's blood at the time of the conduct referred to in
paragraph (a).
(4) No evidence can be
adduced as to a breath or blood alcohol reading obtained from a coin-operated
breath testing or breath analysing machine installed in a hotel or other
licensed premises.
(5) As soon as
practicable after a person has submitted to an analysis of breath by means of
a breath analysing instrument, the person operating the instrument must
deliver to the person whose breath has been analysed a statement in writing
specifying—
(a) the
reading produced by the breath analysing instrument; and
(b) the
date and time of the analysis.
(6) If a person has
submitted to an analysis of breath by means of a breath analysing instrument
and the concentration of alcohol indicated as being present in the blood of
that person by the instrument is the prescribed concentration of alcohol, the
person operating the breath analysing instrument must immediately—
(a) give
the person the prescribed oral advice and deliver to the person the prescribed
written notice as to the operation of this Act in relation to the results of
the breath analysis and as to the procedures prescribed for the taking and
analysis of a sample of the person's blood; and
(b) at
the request of the person made in accordance with the regulations, deliver an
approved blood test kit to the person.
(7) In proceedings for
an offence a certificate—
(a)
purporting to be signed by the Minister and to certify that a person named in
the certificate is an authorised person; or
(b)
purporting to be signed by the Commissioner of Police and to certify that a
person named in the certificate is authorised by the Commissioner of Police to
operate breath analysing instruments; or
(c)
purporting to be signed by an authorised person and to certify that—
(i)
a breath analysing instrument used by the person was in
proper order and was properly operated; and
(ii)
the provisions of this Act with respect to
breath analysing instruments and the manner in which an analysis of breath by
means of a breath analysing instrument is to be conducted were complied with,
will be accepted, in the absence of proof to the contrary, as proof of the
matters so certified.
(8) A certificate
purporting to be signed by an authorised person and to certify that—
(a) a
sample of oral fluid for the purposes of an oral fluid analysis was taken on a
specified day and at a specified time from a person named in the certificate;
and
(b) the
provisions of this Act with respect to the taking of samples of oral fluid for
such purposes were complied with,
is, in the absence of proof to the contrary, proof of the matters so
certified.
(9) A certificate
purporting to be signed by an authorised person and to certify that a person
named in the certificate submitted to an alcotest on a specified day and at a
specified time and that the alcotest indicated that the
prescribed concentration of alcohol may then have been present in the blood of
that person is, in the absence of proof to the contrary, proof of the matter
so certified.
(10) Subject to
subsection (22), a certificate purporting to be signed by an analyst,
certifying as to the concentration of alcohol, or any drug, found in a
specimen of blood identified in the certificate expressed in grams in 100
millilitres of blood is, in the absence of proof to the contrary, proof of the
matters so certified.
(11) Subject to
subsection (22), in legal proceedings a certificate purporting to be
signed by a person authorised under subsection (1) and to certify
that—
(a) a
person named in the certificate submitted to an analysis of breath by means of
a breath analysing instrument on a day and at a time specified in the
certificate; and
(b) the
breath analysing instrument produced a reading specified in the certificate;
and
(c) a
statement in writing required by subsection (5) was delivered in
accordance with that subsection,
will be accepted, in the absence of proof to the contrary, as proof of the
matters so certified.
(12) A certificate
purporting to be signed by a person authorised under subsection (1) and
to certify—
(a) that
on a date and at a time stated in the certificate, a person named in the
certificate submitted to a breath analysis; and
(b) that
the prescribed oral advice and the prescribed written notice were given and
delivered to the person in accordance with subsection (6)(a); and
(c)
that—
(i)
the person did not make a request for an
approved blood test kit in accordance with the regulations; or
(ii)
at the request of the person, a kit that, from an
examination of its markings, appeared to the person signing the certificate to
be an approved blood test kit was delivered to the person in accordance with
subsection (6)(b),
is, in the absence of proof to the contrary, proof that the requirements of
subsection (6) were complied with in relation to the person.
(13) A prosecution for
an offence will not fail because of a deficiency of a kit delivered to the
defendant in purported compliance with subsection (6)(b) and the
presumption under subsection (1) will apply despite such a deficiency
unless it is proved—
(a) that
the defendant delivered the kit unopened to a medical practitioner or
registered nurse for use in taking a sample of the defendant's blood; and
(b) by
evidence of the medical practitioner or registered nurse, that the
medical practitioner or registered nurse was, because of a deficiency of the
kit, unable to comply with the prescribed procedures governing the manner in
which a sample of a person's blood must be taken and dealt with for the
purposes of subsection (2).
(14) Subject to
subsection (22), an apparently genuine document purporting to be a
certificate under Schedule 1A, or a copy of such a certificate, and purporting
to be signed by an authorised person, medical practitioner, registered nurse
or analyst under Schedule 1A is admissible in proceedings before a court and
is, in the absence of proof to the contrary, proof of the matters stated in
the certificate.
(15) If a certificate
of an analyst relating to a sample of blood taken under Schedule 1A is
received in evidence in proceedings before a court and states that the
prescribed concentration of alcohol has been found to be present in the sample
of blood to which the certificate relates, it will be presumed, in the absence
of proof to the contrary, that the concentration of alcohol stated in the
certificate was present in the sample when the sample was taken.
(16) If it is proved
by the prosecution in the proceedings for an offence that a concentration of
alcohol was present in the defendant's blood at the time at which a sample of
blood was taken under Schedule 1A, it will be conclusively presumed that
concentration of alcohol was present in the defendant's blood throughout the
period of 3 hours immediately preceding the taking of the sample.
(17) If certificates
of an authorised person and analyst, or a medical practitioner and analyst, or
a registered nurse and analyst, under Schedule 1A are received as evidence in
proceedings before a court and contain the same identification number for the
samples of oral fluid or blood to which they relate, the certificates will be
presumed, in the absence of proof to the contrary, to relate to the same
sample of oral fluid or blood.
(18) If a certificate
of an analyst relating to a sample of oral fluid or blood taken under Schedule
1A is received as evidence in proceedings before a court and states that a
drug has been found to be present in the sample of oral fluid or blood to
which the certificate relates, it will be presumed, in the absence of proof to
the contrary, that the drug stated in the certificate was present in the
sample when the sample was taken.
(19) If it is proved
by the prosecution in proceedings for an offence that a drug was present in
the defendant's oral fluid or blood at the time at which a sample of
oral fluid or blood was taken under Schedule 1A, it will be conclusively
presumed that the drug was present in the defendant's oral fluid or blood (as
the case may require) throughout the period of 3 hours immediately preceding
the taking of the sample.
(20) A certificate
purporting to be signed by an authorised person and to certify that a person
named in the certificate submitted to a drug screening test on a specified day
and at a specified time and that the drug screening test indicated that a
prescribed drug may then have been present in the oral fluid of the person is
admissible in proceedings before a court and is, in the absence of proof to
the contrary, proof of the matters so certified.
(21) A certificate
purporting to be signed by an analyst and to certify that an
oral fluid analysis was properly conducted is admissible in proceedings before
a court and is, in the absence of proof to the contrary, proof of the matter
so certified.
(21a) A
certificate—
(a)
purporting to be signed by the Commissioner of Police and to certify that a
person appointed under Part 2 and named in the certificate is authorised by
the Commissioner of Police to conduct drug screening tests; or
(b)
purporting to be signed by a police officer or a person authorised by the
Commissioner of Police to conduct drug screening tests and to certify that the
apparatus used to conduct a drug screening test was in proper order and the
drug screening test was properly conducted,
is admissible in proceedings before a court and is, in the absence of proof to
the contrary, proof of the matters so certified.
(22) A certificate
referred to in subsection (10), (11) or (14) cannot be received as
evidence in proceedings for an offence—
(a)
unless a copy of the certificate proposed to be put in evidence at the trial
of a person for the offence has, not less than 7 days before the commencement
of the trial, been served on that person; or
(b) if
the person on whom a copy of the certificate has been served has, not less
than 2 days before the commencement of the trial, served written notice on the
complainant or informant requiring the attendance at the trial of the person
by whom the certificate was signed; or
(c) if
the court, in its discretion, requires the person by whom the certificate was
signed to attend at the trial.