Page 847 - Week 03 - Thursday, 25 March 1993
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MR HUMPHRIES: I know that Mr Berry is deeply disappointed that he will not have another argument to generate. But I am afraid that on this occasion somehow - mainly because he himself is not involved in this Bill, I suspect - this Bill has actually won our support. This proposal amends the Motor Traffic (Alcohol and Drugs) Act 1977 to keep up with the rapidly changing area of drink-driving offences. The Bill closes the gate on a loophole in the law which permits a person to escape conviction because they can cast aspersions, in effect, on blood alcohol or breath alcohol tests that have been undertaken in respect of an alleged offence of a person driving a car on the road while that person has in excess of the prescribed concentration of alcohol in the blood.
The problem, Madam Speaker, is that the PCA offences, as they are called, are so framed as to have a very artificial flavour about them. It is not an offence in the ACT, members might be surprised to learn, for people to drive a car while they have more than a certain concentration of alcohol in the bloodstream. That is just as well, because it would be very difficult, I imagine, for policemen to be leaping into moving cars to do tests on people as they were driving down the street. It is an offence - - -
Mr Kaine: To get caught doing it.
MR HUMPHRIES: Not quite that either, Mr Kaine. It is an offence if a person who has been the driver of a motor vehicle on a street and undertakes a test, a blood test or a breath test, that indicates a certain level of alcohol in the bloodstream. The offence is being in a certain state after having driven a car on a public street. There is a legal assumption that a person who has been driving a car and who now has a certain level of alcohol in the bloodstream was in that same state 15 minutes or 30 minutes before the test was taken, or whenever it might be.
In the existing Act there are two sections which deal with this. Section 19 provides that a person who is in that position having undertaken a breath test is guilty of an offence; and the same situation is reflected in section 20, under which a person who, having taken a blood test, is in that position commits a certain offence. The present law, of course, depends very heavily on the reliability of the primary instrument measuring either breath or blood levels of alcohol. I say "the primary instrument" because very often a breath test is followed up with a blood test. A blood test occasionally might be followed by a breath test, although that would be very rare, I imagine.
As the law stands now, the tests need to be, in effect, numerically consistent. A recent case in the Supreme Court, to which the Attorney made reference in his presentation speech, indicated the danger which the present drafting of the law presents. In that case, Harrington v. Zaal, an accused person had both a blood test and a breath test, and those two tests indicated different readings. Perhaps the tests were taken at different times; perhaps there was just some inconsistency in the reading. From notes that the Attorney kindly showed me, one test indicated a blood alcohol level of .07 and the other .09 - something of that kind anyway. Both of the readings were above the .05 limit which is prescribed in the ACT. On appeal to the Supreme Court, this was relied upon by the defendant in that case to show that neither test was accurate because the results were at variance with each other. The breath test could be disputed by the blood test and the blood test could be disputed by the breath test. Even though they both showed a reading of over .05, they were not consistent and therefore neither could be relied on.
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