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Drink driving and blood sample taken outside 3 hours
Drink driving and blood sample taken outside 3 hours
Written by
Shaun Pascoe
Criminal Defence Lawyer
An Article about Blood sample and 3 hour rule
Must a police officer obtain informed consent for the taking of blood outside the 3 hour period of driving?
If a sample of blood is requested outside of 3 hours of driving, the police officer requesting the sample, must have the other person's informed consent. Failure to obtain consent may render any blood certificate evidencing blood alcohol concentration inadmissible.
See the case of Day v County Court of Victoria and Hanson [2002] VSC 426 which discussed this issue in the context of a prosecution under s. 49(1)(b) of the Road Safety Act 1986. Section 57 of the Road Safety Act governs the admissibility of blood sample certificates for drink driving offences.
The Court ruled that if the sample was taken outside of 3 hours, and the prosecution were relying on the provisions under s. 57 to establish a BAC at the time of driving over the prescribed limit, then express consent must have been obtained from the person providing the sample. The appeal was successful and the convicton for exceed pca (s. 49(1)(b)) quashed.
