Last updated 15 February 2019
Certificates issued are conclusive evidence either that the person failed to provide a specimen of breath, saliva or blood, or that the blood alcohol concentration or presence of a relevant drug was as recorded at the time of analysis and during the preceding two hours or three hours respectively (ss 80(15A)–80(15B), 80(15G), 80(16B)–80(16C), 80(16E)–80(16F), 80(16FA) Transport Operations (Road Use Management) Act 1995 (Qld) (TORUM Act)). The certificates may also have this conclusive character in proceedings other than prosecution of drink driving offences (e.g. see ss 80(16C) and 80(16F)–80(16G) of the TORUM Act in civil liability actions).
The conclusiveness of a certificate stating the result of an analysis may be negated by proof that the breathalyser was defective or not properly operated (s 80(15H) TORUM Act). Similarly, the conclusiveness of certificates of saliva or blood analysis may be negated by proof that the laboratory test did not provide a correct result (s 80(16G) TORUM Act). In the case of a certificate stating that a person failed to supply a specimen of breath or blood, the certificate can be disproved by any means (ss 80(15B), 80(15F), 80(16E) TORUM Act).
When a person intends to defend a charge on the basis that a breathalyser was defective or not properly operated, or a saliva or blood test result was incorrect, written notice must be given to the arresting officer not less than 14 days before the court hearing.
According to the courts, if a roadside breath or saliva test has been unlawfully administered, the result of this breath, saliva or blood analysis may still be used as evidence. However, a court does have discretion to reject such evidence because it was unlawfully obtained (Bunning v Cross (1978) 141 CLR 54).
Sometimes, a person is not stopped by police while driving and, on returning home, consumes alcohol or drugs. Later, if police officers arrive and suspect on reasonable grounds that the person was the observed driver, they may ask them to take a breath or saliva test. If this is positive, the person may be taken to a police station for a breath, saliva or blood analysis test. The blood alcohol or drug concentration recorded will obviously not be the same as it would have been at the time of the accident. Despite this, under ss 80(15G) and 80(16FA) of the TORUM Act, the reading or result obtained at the later time is conclusive evidence of the presence of a relevant drug or the blood alcohol concentration of the person (from the time of the driving to the time of analysis) if it was made not more than three hours after the driving. That evidence can only be negated if it is proven that the breath or saliva analysing instrument was defective or not properly operated.
Save for the defence of mistake of fact (s 24 Criminal Code Act 1899 (Qld) (Criminal Code)), the defences stipulated in the Criminal Code (s 23 for accident, s 25 for extraordinary emergency, s 27 for insanity, s 28 for involuntary intoxication and s 31 for compulsion) also apply to drink or drug driving offences (s 79(12) TORUM Act).
If the driver has been previously convicted of the same or similar offences within the previous five years, the penalties are increased. On a third conviction for an offence of driving under the influence or a combination of other serious traffic offences within five years, a compulsory sentence of imprisonment will be imposed (s 79(1C) TORUM Act). The five-year period is calculated backwards from the date of conviction (the court date) not the date the offence was committed. Again, suspension of the period of imprisonment under s 147 of the Penalties and Sentences Act 1992 (Qld) may be ordered.
Certificates issued under the TORUM Act are also relevant to the question of a driver’s insurance cover if the insured is involved in an accident while driving under the influence of alcohol or a drug.
If a driver causes the death of, or injury to, another person when driving with more than the allowed blood alcohol concentration or while a relevant drug is present, the compulsory third party insurance policy (for which the premium is paid as part of the annual registration fee) will still cover them for any civil liability incurred. However, the insurance company may seek to recover all or part of the payout from the insured drink driver.
Comprehensive insurance policies or cheaper third party property damage policies will generally not cover damage caused while the driver’s blood alcohol concentration was above a certain level. This level may be higher or lower than the minimum level prescribed by the TORUM Act (i.e. 0.05), and drivers would be well advised to check their insurance policies on this point. Also, some policies now provide that failure to supply a specimen when requested to do so by a police officer prevents a person from claiming on their insurance.
Drivers will also be required to disclose the fact that they had been charged with such an offence in any future insurance applications, and any person convicted of drink-driving offences will pay increased insurance premiums for some years thereafter. The statutory requirements of disclosure mean that in some cases, when charges are possibly pending, an admission in an insurance application may also be used as evidence in any prosecution. Legal advice in these circumstances may be necessary.