Ehmann v Police - [2006] SASC 235

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
EHMANN v POLICE
[2006] SASC 235
Judgment of The Honourable Justice Perry
10 August 2006
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - OTHER OFFENCES
Appellant convicted of driving with the prescribed concentration of alcohol - whether an attempt to blow into the breath analysis machine that provides less than one litre of air is nevertheless a 'sample' within the meaning of reg 8A(1) of the Road Traffic (Miscellaneous) Regulations 1999 - whether to disturb the magistrate's finding of fact regarding what was said by the police officers to the appellant. Held: an attempt to provide a sample for breath analysis is only a sample within the meaning of reg 8A(1) if it provides more than one litre of air - therefore the regulations were not breached when testing the appellant - appeal dismissed.
Road Traffic Act 1961 s 47a and s 47G; Road Traffic (Miscellaneous) Regulations 1999 reg 8A(1), reg 8A(2) and reg 8A(3), referred to.
Evans v Benson (1986) 4 MVR 257; Taylor v Hayes (1990) 53 SASR 282, considered.

EHMANN v POLICE
[2006] SASC 235
Magistrates Appeal: Criminal

PERRY J. The appellant appeals to this Court following her conviction in the Magistrates Court sitting at Adelaide on a charge that on 14 December 2004 she drove a motor vehicle on Greenhill Road at Hazelwood Park while there was present in her blood the prescribed concentration of alcohol as defined in s 47a of the Road Traffic Act 1961 (“the Act”).
It was alleged, and the trial magistrate so found, that the concentration of alcohol was 0.105 grams in a 100 millilitres of blood. (I will hereafter refer to blood alcohol levels by a % sign.)
Background
At the time of the alleged offence the appellant was aged 42 years. She lived at Beaumont, which is about three minutes by car from The Feathers hotel.
On the evening in question, she had been drinking with her husband at home. According to a statement which she gave later to a police officer, she had her first drink at about 8.00 pm and the last at about 9.30 pm. She said that during that time she had drunk about two and a half glasses of sparkling shiraz. She did not have a meal during that period.
Shortly before 10.00 pm she drove a car from her home to The Feathers Hotel, intending to buy some more wine to drink with her husband that night. She approached the drive-in bottle shop of the hotel, only to find that it was closed. She then drove through the hotel car park, emerging onto Glynburn Road, from which she drove to Greenhill Road.
As she negotiated the roundabout at the intersection of Glynburn and Greenhill Roads, intending to proceed west on Greenhill Road, her attention was drawn to a police car to her rear which signalled her to stop. She pulled over and stopped in Greenhill Road, when she was approached by Senior Constable…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ehmann v Police

Details

AGLC: Ehmann v Police [2006] SASC 235
Case: [2006] SASC 235
Decision Date: 10 August 2006

CaseChat Overview and Summary

The appeal was brought by the appellant, Ehmann, against her conviction for driving with a prescribed concentration of alcohol in her system. The matter was heard and determined in the Magistrates' Court. The primary issue before the court was whether an attempt to blow into the breath analysis machine that provides less than one litre of air constitutes a 'sample' within the meaning of reg 8A(1) of the Road Traffic (Miscellaneous) Regulations 1999. Additionally, the court needed to decide whether to disturb the magistrate's finding of fact regarding what was said by the police officers to the appellant.

The court considered that an attempt to provide a sample for breath analysis is only a sample within the meaning of reg 8A(1) if it provides more than one litre of air. The court held that the appellant's attempts to provide a sample on the first and third occasions were insufficient as they did not produce an analysis. This interpretation was consistent with observations made by King CJ in Evans v Benson, which established that if an attempt to submit is abortive in that it does not produce an analysis, the obligation to submit remains until an analysis is achieved. The court upheld the magistrate's finding that the regulations were not breached when testing the appellant because the required samples were eventually provided. Consequently, the appeal was dismissed.

The final orders of the court affirmed the conviction of the appellant for driving with a prescribed concentration of alcohol in her system, as the regulations were ultimately complied with during the breath analysis process.

Orders

Orders of the court

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Background

Background to the litigation

It was alleged, and the trial magistrate so found, that the concentration of alcohol was 0.105 grams in a 100 millilitres of blood. (I will hereafter refer to blood alcohol levels by a % sign.)Background At the time of the alleged offence the appellant was aged 42 years. She lived at Beaumont, which is about three minutes by car from The Feathers hotel. On the evening in question, she had been drinking with her husband at home. According to a statement which she gave later to a police officer, she had her first drink at about 8.00 pm and the last at about 9.30 pm. She said that during that time she had drunk about two and a half glasses of sparkling shiraz. She did not have a meal during that period. Shortly before 10.00 pm she drove a car from her home to The Feathers Hotel, intending to buy some more wine to drink with her husband that night. She approached the drive-in bottle shop of the hotel, only to find that it was closed. She then drove through the hotel car park, emerging onto Glynburn Road, from which she drove to Greenhill Road. As she negotiated the roundabout at the intersection of Glynburn and Greenhill Roads, intending to proceed west on Greenhill Road, her attention was drawn to a police car to her rear which signalled her to stop. She pulled over and stopped in Greenhill Road, when she was approached by Senior Constable Allen who was the driver of the police car. He directed the appellant to submit to an alcotest. He did so as part of a random breath testing campaign. As Senior Constable Allen approached the appellant’s car, he detected a slight smell of liquor through the open window of the driver’s side. The appellant co-operated in the administration of the alcotest. The test proved positive. While the test was being administered, another police officer, Constable Jolley, pulled up in a patrol car. He had also been performing random breath tests in the area. Senior Constable Allen asked him to remain. Two other police officers were then summoned. They were Senior Constable Matricciani, who was driving a van containing the equipment for the administration of the breath analysis, and Constable Bowels, the breath analysis operator. At 10.57 pm, the appellant first blew into the breath analysing instrument. The machine recorded the outcome as “not allowed blowing”. This was an indication that an insufficient sample of breath was received by the machine. In those circumstances, no analysis is made or recorded. The appellant was asked to blow into the machine again. The time of the taking of the second sample was again recorded as 10.57 pm. On that occasion the outcome was successful, and a blood alcohol concentration of 0.110% was recorded. The appellant was asked to give a further sample, which she attempted at a time recorded as 11.01 pm. This was unsuccessful. The machine again recorded the outcome as “not allowed blowing”. At 11.02 pm the appellant again blew into the machine. This time a sufficient sample was obtained, and the machine recorded a blood alcohol concentration of 0.105%.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

PERRY J

The appellant’s evidence was that she had understood her conversation with the police officers, including their use of the words “as soon as possible”, after she had asked if she could go in the morning for a blood test, to mean that it would be in order for her to do just that.Reasons for judgment of the Magistrate The defence case put to the magistrate was that the result of the breath analysis (exhibit P8) should be excluded from evidence on three grounds which he summarised in his reasons as follows:(1)The requirements of the breath analysis procedures were not complied with, as a two minute interval did not occur between the first test and the second test.(2)A total of four samples of breath were required and given.(3)Senior Constable Allen and other police officers in attendance that night gave advice over and beyond the prescribed oral and the prescribed written advice which resulted in Mrs Ehmann not having the sample of blood taken from her earlier than 10.30 am and had she done so she would have been able to contest the accuracy of the result of the breath analysis (because the testing of the blood produced a “nil” result). In order to understand the first two grounds, it is necessary to have regard to reg 8A(1), which is as follows:8A(1) Pursuant to section 47E(2e), where a person submits to a breath analysis, the breath analysis must be conducted in the following manner:(a)the person must provide two separate samples of breath for analysis; and(b)each sample must be provided in accordance with the directions of the operator of the breath analysing instrument and must consist of not less than one litre of breath; and(c)there must be an interval of not less than two minutes and not more than 10 minutes between the provision of the samples.(2)…. Based on that regulation, the argument put to the magistrate on behalf of the appellant was that the regulation had not been followed, as four rather than two samples had been obtained, and further, because the time interval between the first and second samples and the third and fourth was less than two minutes. Relying on observations made by King CJ in Evans v Benson,[1] the magistrate found that on the first and third occasions when the appellant was asked to furnish a sample, in fact no sample within the meaning of the regulation was provided, in that insufficient breath was exhaled to produce an analysis.[1] (1986) 4 MVR 257. In Evans v Benson (supra), King CJ observed, with respect to s 47E:The requirement authorised by the section, and the corresponding obligation, is to submit to a breath analysis. If the attempt to submit is abortive in that it does not produce an analysis, the right to require and the corresponding obligation to submit, remain until an analysis is achieved.[2][2] Ibid at 268. That conclusion is consistent with the terms of reg 8A, more particularly reg 8A(1)(b). This provides that:Each sample … must consist of not less than one litre of breath. If the attempt to provide a sample produces less than one litre of breath, no sample has been provided in accordance with the regulation.

Ratio Decidendi

Legal Principle Established

Established by: PERRY J

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