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Validity of Breath Testing - An Overview of the Victorian Experience (From International Conference on Alcohol, Drugs and Traffic Safety Seventh - Proceedings, P 313-316, 1979, Ian R Johnston, ed. - See NCJ-73856)

NCJ Number
N E W McCallum; W L K Preston
Date Published
4 pages
Legal defenses are described that are used in the state of Victoria, Australia, to contest the validity of blood and breath analysis of blood alcohol concentration (BAC) in cases where readings are sufficiently high to warrant cancellation of driving licenses for specified periods.
In April 1974, statutory provision was made for blood and breath tests to be taken from all persons over 15 years of age who were involved in a car accident. Also, 1976 legislation provided for random breath testing of all drivers on a 12-month trial basis. Blood samples taken from accident victims as a basis for possible breath analysis were to be collected by venipuncture; whereas pulmonary blood was to be the relevant medium when compulsory breath analyses were performed. The introduction of mandatory license cancellation for varying periods when BAC readings exceed stipulated levels has resulted in legal defense efforts to reduce penalties by discrediting the breath test measurement of BAC levels. The contention of instrument error in cases where readings are slightly in excess of the upper limit of the BAC range usually fails in view of the known tendency of the Breathalyzer to give a slightly low BAC value. The practice of alleging Breathalyzer overestimation of BAC levels because pulmonary circulation has a higher alcohol concentration than peripheral venous blood is also disallowed. The contention that BAC levels were lower at the time of the offense than at the time of measurement is usually unsuccessful because variables such as rate of absorption and distribution of alcohol into the tissues makes precise BAC at a prior time impossible to calculate. However, sometimes the court can reasonably assess whether additional drinking after the offense has raised the BAC sufficiently to attain a level which would unjustly incur a more severe penalty. It is concluded that, due partly to the skill of police operators, breath alcohol analysis by the Breathalyzer is sufficiently reliable without corroborative blood analysis. Sound legislation is needed to insure that the Breathalyzer is used efficiently. Five references are provided.