7.16 Statistical returns for breath analyses and breath tests
7.16.1 Deleted
7.16.2 Statistical returns for breath tests
ORDER
Officers in charge of stations/establishments where breath testing devices (SD400+) are located are to ensure the statistical data regarding the use of the breath testing devices is downloaded weekly or more regularly as required during specified periods.
PROCEDURE
Officers in charge of stations/establishments should ensure that:
(i) the statistical data is downloaded using the dedicated computer program;
(ii) if a breath testing device is not used during the previous week, a 'Training' test is to be conducted prior to downloading the stored data at the end of the week;
(iii) prior to forwarding a device to the respective Calibration Laboratory for routine servicing or repairs, if possible, the statistical data of the device is to be downloaded using the dedicated computer program.
(iv) if required for administrative or operational reasons, statistical data regarding the use of breath testing devices is downloaded daily.
The downloading procedures provided in Appendix 7.4 of this chapter should be followed.
7.16.3 Downloading of stored data from the Lion Intoxilyzer 8000 breath analysing instrument
ORDER
Officers in charge of stations/establishments where a Lion Intoxilyzer 8000 evidential breath analysing instrument is located or who are responsible for a Special Purpose Vehicle (commonly referred to as a Booze Bus or a Mini Booze Bus) where a Lion Intoxilyzer 8000 evidential breath analysing instrument is located are to ensure the stored data within the instrument is downloaded at least once per month.
PROCEDURE
Officers in charge of stations/establishments or officers responsible for a Special Purpose Vehicle should ensure that stored data within the Lion Intoxilyzer 8000 is downloaded using the dedicated computer program:
(i) no later than the seventh day of the following month; and
(ii) where possible, prior to the instrument being returned to the Calibration Laboratory for routine service or repair.
The downloading procedures provided in Appendix 7.5 of this chapter should be followed.
7.17 Breath or saliva analysing instrument not to be produced in court
POLICY
Officers are not to produce to a court a breath or saliva analysing instrument unless ordered by a court.
PROCEDURE
Officers who have been ordered by a court to produce to the court a breath or saliva analysing instrument should advise the Coordinator, Breath Analysis State Support, State Traffic Support Branch, Operations Support Command and the Officer in Charge, Calibration Laboratory, Radio and Electronics Section, Brisbane.
7.18 Servicing of breath or saliva analysing instruments
PROCEDURE
Officers in charge of stations/establishments where breath or saliva analysing instruments are located should, when any such instrument requires repair or memory downloading, send advice to the Calibration Laboratory, Radio and Electronics Section, Operations Support Command. The advice should include:
(i) the station/establishment where the breath or saliva analysing instrument is located;
(ii) the serial number of the breath or saliva analysing instrument; and
(iii) the type of action requested regarding the breath or saliva analysing instrument and if the breath or saliva analysing instrument has malfunctioned, a description of the fault.
The Officer in Charge, Calibration Laboratory, Radio and Electronics Section, Operations Support Command should make all necessary arrangements for the routine servicing, repair or memory downloading of Service breath or saliva analysing instruments.
The Officer in Charge of the Roadside Drug Testing Unit should make all necessary arrangements for the routine servicing, repair or memory downloading of Service saliva analysing instruments.
7.19 Arrest - no breath test
PROCEDURE
It is permissible for an officer to arrest a subject person for an offence against s. 79(1) of the Transport Operations (Road Use Management) Act based solely on the observations (see Appendix 7.3) by that officer of the subject person (indicia alone). However, in any such cases the officer must have formed an opinion that the subject person was under the influence of liquor or a drug and the subject person should then be required to provide a specimen of breath for analysis or a specimen of blood for a laboratory test.
In the case of an analysis of breath or blood to determine the subject's alcohol concentration, despite the provisions of s. 79(4) of the Transport Operations (Road Use Management) Act, if the result shows that the subject person had an alcohol concentration which:
(i) is over the high alcohol limit, the officer should continue the prosecution;
(ii) is over the no alcohol limit, general alcohol limit or middle alcohol limit as applicable but is not over the high alcohol limit, the officer should consider whether:
(a) sufficient evidence to continue the original prosecution is available (see ss. 3.4.3: 'The discretion to prosecute' and 3.4.4: 'Withdrawal of charges' of the Operational Procedures Manual); and
(b) if the original prosecution is not to be continued, a proceeding for any offence relating to the breath or blood alcohol concentration found in the subject person should be commenced.
In the case of an analysis of blood to determine the concentration of drugs in the subject person's blood, if the result of the analysis together with the opinion of a doctor (see s. 7.7.6: 'Certificate of analysis - blood' of this chapter) does not indicate that the subject person was under the influence of a drug officers should consider whether sufficient evidence to continue the original prosecution is available (see ss. 3.4.4: 'The discretion to prosecute' and 3.4.5: 'Withdrawal of charges' of the Operational Procedures Manual).
ORDER
When persons are suspected of committing an offence under s. 79(7) of the Transport Operations (Road Use Management) Act (such as a person riding a bicycle or a horse whilst under the influence of liquor or a drug) no authority exists to require that such persons provide a specimen of breath for a breath test. However following the arrest of such persons a requirement may lawfully be made for the subject persons to provide a specimen of breath for analysis or a specimen of blood for a laboratory test.
POLICY
In cases where a person has been arrested for an offence under s. 79(7) of the Transport Operations (Road Use Management) Act and upon requirement made and direction given that person fails to provide a specimen of breath for analysis or a specimen of blood for a laboratory test, no charge should be preferred against that person for the offence under s. 80(11) of the Transport Operations (Road Use Management) Act.
7.20 Exculpatory provisions (defences)
Persons charged with offences under the provisions of s. 79 and s. 80 of the Transport Operations (Road Use Management) Act may have available to them a number of defence provisions which may exculpate them. However there are a number of provisions which are specifically provided for within the Transport Operations (Road Use Management) Act.
7.20.1 The Criminal Code
Section 79(12) of the Transport Operations (Road Use Management) Act provides that the Criminal Code, s. 24: 'Mistake of Fact', does not apply to an offence under s. 79 of the Transport Operations (Road Use Management) Act.
7.20.2 Persons in charge of motor vehicles
Officers should be aware that s. 79(6) of the Transport Operations (Road Use Management) Act, which relates to offences committed whilst being in charge of motor vehicles, provides that:
'If on the hearing of a complaint of an offence against subsection (1)(c), (1F)(c), (2)(c), (2AA)(c), (2B)(c), (2J)(c), (2K)(c) or (2L)(c) in respect of a motor vehicle the court is satisfied beyond reasonable doubt by evidence on oath that at the material time -
(a) the defendant -
(i) by occupying a compartment of the motor vehicle in respect of which the offence is charged other than the compartment containing the driving seat of that motor vehicle; or
(ii) not being in that motor vehicle, by some action;
had manifested an intention of refraining from driving that motor vehicle whilst the defendant was under the influence of liquor or a drug, as the case may be, whilst the defendant was over the general alcohol limit or, if at the material time the defendant was a person to whom subsection (2A), (2B), (2J), (2K) or (2L) referred, the defendant was over the no alcohol limit; and
(b) the defendant -
(i) was not under the influence of liquor or a drug to such an extent; or as the case may be;
(ii) was not, by virtue of the concentration of alcohol in the defendant's blood or breath influenced thereby to such an extent;
as to be incapable of understanding what the defendant was doing or as to be incapable of forming the intention referred to in paragraph (a); and
(c) the motor vehicle in respect of which the offence is charged was parked in such a manner as not to constitute a source of danger to other persons or other traffic; and
(d) the defendant had not previously been convicted of an offence under subsection (1), (1F), (2), (2AA), (2B), (2D), (2J), (2K) or (2L) within a period of 1 year prior to the date in respect of which the defendant is charged;
the court shall not convict the defendant of the offence charged.'
7.21 Presence of legal representatives during breath or saliva analysis tests
POLICY
Where a legal representative is in the company of a person required to provide a specimen of breath or saliva for analysis or a specimen of blood for a laboratory test, the legal representative may be permitted to remain for the duration of the procedure.
When a request is made for the services of a legal representative by a person who is at a police station or authorised place for the purpose of providing a specimen of breath or saliva for analysis or a specimen of blood for a laboratory test under the provisions of the Transport Operations (Road Use Management) Act, the provisions of ss. 2.14.7: 'Judges Rules' and 2.14.8: 'Whereabouts of persons being interviewed to be disclosed' of the Operational Procedures Manual apply.
Normal procedures for obtaining a specimen of breath or saliva for analysis or a specimen of blood for a laboratory test are to be followed and no delays should occur simply because the subject person's legal representative has not arrived.
PROCEDURE
The investigating officer should ensure that a legal representative is aware of the mandatory requirements placed on the subject person by the provisions of the Transport Operations (Road Use Management) Act.
Where the operator is of the opinion that a legal representative is hindering or obstructing the process, such operator should advise the legal representative that any continued hindrance or obstruction may result in the legal representative's removal.
Where a specimen of blood is to be required and the investigating officer is of the opinion that a legal representative is hindering or obstructing a health care professional who is to take the specimen of blood and/or urine, the officer making the requirement should advise the legal representative that any continued hindrance or obstruction may result in the legal representative's removal and prosecution for the offence of 'Obstructing the taking of a blood specimen' (see s. 80A of the Transport Operations (Road Use Management) Act).
If at a hospital, officers have no right to remove a legal representative from an examination room, cubicle, etc., such right is vested in the hospital staff of the particular hospital. Likewise when in a doctor's surgery, the doctor or the staff at that doctor's surgery has that right.
7.22 Private medical examination
POLICY
Where a person has been arrested for an offence against ss. 79 or 80 of the Transport Operations (Road Use Management) Act and that person requests a private medical examination, a doctor of the subject person's choice should be permitted to examine that person in cases where that person is to be detained in custody.
See s. 16.12.10: 'Requests by prisoners or legal representatives for attendance of doctor at watchhouse' of the Operational Procedures Manual.
7.23 Analysis challenged by defence
PROCEDURE
A defendant may, pursuant to s. 80(26) (also see s. 80(27)), give notice to the complainant or arresting officer where that defendant proposes to lead evidence to prove that the breath instrument was defective or not properly operated, that the result of a laboratory test of a specimen of blood or saliva was not a correct result or that the signature or other matter in a certificate issued by a health care professional was not correct.
When officers are served with any such notice they should notify the prosecutor responsible for the case. When notice is received in relation to a breath analysis matter, the prosecutor responsible for the case should notify and liaise with the Coordinator, Breath Analysis State Support, State Traffic Support Branch, Operations Support Command as soon as possible regarding the matter/s outlined in the notice so that any required expert witnesses may be called to give evidence.
7.24 Limitation on use of saliva for saliva test or saliva analysis
ORDER
A specimen of saliva for a saliva test or for saliva analysis obtained under s. 80: 'Breath and saliva tests, and analysis and laboratory tests' of the Transport Operations (Road Use Management) Act from a person must not be used for:
(i) DNA analysis to help decide whether or not the person may be a suspect in relation to an offence; or
(ii) for a purpose stated in s. 537: 'Purpose of ch 18' of the Police Powers and Responsibilities Act.
7.25 Observing the subject person and noting of indicia relating to the consumption of liquor/drugs
Observed indicia associated with, and resulting from, the consumption of liquor and/or drugs may, in some circumstances, be explained by a subject person. However without any explanation and subject to acceptance by a court, evidence of indicia alone may be sufficient to prove that a subject person was under the influence of liquor and/or drugs. Officers should observe a subject person to form an opinion as to whether or not that person is under the influence of liquor and/or a drug. Observations should include:
(i) manner of driving:
(a) observe the subject person's manner of driving; and
(b) if it is necessary for police to drive the subject person's vehicle, note the vehicles performance compared to that when driven by the subject (e.g., steering, road handling);
(ii) physical appearance and condition:
(a) demeanour before and after arrest;
(b) appearance before and after arrest;
(c) state of dress (whether tidy or untidy, vomit on clothing, buttons undone or wrongly fastened);
(d) eyes (whether bloodshot, watery, glassy, pupils dilated or pin pointed, or nystagmus which is where eyes are seen to move more or less in a rhythmical manner either from side to side or up and down from a point of fixation);
(e) face - flushed, pallid, otherwise abnormal;
(f) hair - untidy or tidy;
(g) smell of liquor on breath and/or clothing; and
(h) excessive salivation on mouth;
(iii) behaviour - talkative, abusive, insolent, excited, sullen, cooperative, uncooperative, lively, aggressive, hostile, sleepy;
(iv) speech - slurred, grossly mispronounced, thick, etc.;
(v) coordination swaying, manner of walking, need for support etc.;
(vi) memory: can the subject person remember:
(a) the date and day of the week;
(b) place of residence; and
(c) movements prior to interception by police;
(vii) handwriting - if possible, obtain a specimen of the subject person's handwriting for comparison purposes; and
(viii) health:
(a) has the subject person recently:
- suffered any injury or illness;
- received medical treatment and if so what treatment was received, when, where and by whom. Has the subject person taken any medicine and if so, what type, how long since last dose, quantities taken; and
- received dental treatment; and
(b) is the subject person a diabetic and if so, what medication has been administered. How long since the subject person's last dose;
(ix) conduct at watchhouse and at any other time including at court - has the subject person's conduct changed when compared to prior conduct; and
(x) in cases where a specimen of blood for a laboratory test is taken by a doctor or when a doctor present, seek the doctor's opinion.
Questioning of the subject person should include:
(i) consumption of liquor/drugs;
(ii) where was the liquor/drugs consumed;
(iii) type of liquor/drugs consumed;
(iv) size of drinks;
(v) quantity consumed;
(vi) times of first and last drink;
(vii) meals taken and time of last meal;
(viii) has the subject person been exposed to any chemicals;
(ix) what explanation has the subject person for the manner of driving and all of the indicia observed; and
(x) has the subject person been involved in a traffic crash, and if so, what liquor/drugs has the subject consumed before and after the traffic crash.
A subject person suffering from a medical condition such as brain injury, skull fracture, concussion, other head injury, low blood pressure, shock, diabetes, epilepsy and other pathological conditions may exhibit similar symptoms to a person under the influence of liquor and/or a drug.
A checklist of indicia associated with the consumption of liquor is contained in Appendix 7.3 of this chapter.
7.26 Children
Questioning of children in relation to drink driving should be done in the presence of an independent adult (see s. 7.6.2: 'The breath analysis').
See ss. 1.11: 'Powers of arrest' and 1.13: 'Proceedings for offences' of this Manual and Chapter 5: 'Children' of the Operational Procedures Manual.
7.27 Diplomatic and consular immunity
See s. 14.7: 'Diplomatic immunity and consular immunity for traffic offences' of this Manual and s. 11.8: 'Diplomatic Privileges and Immunities Act' of the Operational Procedures Manual.
Issue 18 - December 2011
