Ehmann v Police

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.