Manetta v Police

[1999] SASC 232

MANETTA v POLICE
[1999] SASC 232

Full Court:  Doyle CJ, Duggan and Debelle JJ

1. DOYLE CJ.       The appeal should be dismissed for the reasons given by Debelle J.  There is nothing that I wish to add to those reasons.

2. DUGGAN J.      I agree that this appeal should be dismissed for the reasons given by Debelle J.

3. DEBELLE J. The appellant was convicted of the offence of driving whilst there was present in his blood the prescribed concentration of alcohol contrary to s 47B of the Road Traffic Act 1961. He had been stopped at a random breath testing station. A breath analysis showed that the concentration of alcohol in the appellant’s blood was 0.159 grams per 100 millilitres of blood. The appellant appealed against his conviction to a single judge of this court but his appeal was dismissed. The appellant now appeals by leave to this court.

4. The relevant facts are not in dispute. The question is whether the prosecution is entitled to rely on the presumption in s 47G(1) of the Road Traffic Act.  That question turns on whether the police officer who administered the breath analysis had complied with the procedures required by the Act.

A Breath Analysis is Required

1. The appellant had been required to stop at a random breath testing station.  After stopping, he was required to submit to an alcotest.  He recorded a positive reading.  The test was conducted at about 11.40pm.  The appellant was then informed that he was obliged to undergo a breath analysis.  After the procedure had been explained, the appellant asked that the breath analysis be conducted immediately.  The request was refused.  The appellant was directed to wait.  The breath analysis was conducted at 12.08am, that is to say, some 28 minutes after the alcotest.  The breath analysis revealed the concentration of alcohol in the appellant’s blood to be 0.159 grams in a hundred millilitres of blood.

The Statutory Provisions

1. The contention that the breath analysis was not conducted in accordance with the procedures prescribed in the Road Traffic Act is grounded on the terms of s 47DA and s 47E of the Act. The relevant provisions provide:

   “47DA.(1)  A breath testing station may be established by members of the police force at any time on or in the vicinity of any road for the purpose of enabling alcotests to be conducted in relation to persons driving motor vehicles on the road.

   (2)  A breath testing station must be established in such a way, and consist of such facilities and warning and other devices, as the Commissioner of Police considers necessary in order to enable vehicles to be stopped in a safe and orderly manner and the alcotests to be made in quick succession.

   ...

   (4)  The Commissioner of Police must establish procedures to be followed by the members of the police force performing duties at or in connection with a breath testing station, being procedures designed to prevent as far as reasonably practicable any undue delay or inconvenience to persons stopped at the station.

   ...

   47E.(1)  Where a member of the police force believes on reasonable grounds that a person, while driving a motor vehicle or attempting to put a motor vehicle in motion -

   (a).... has committed an office against any provision of Part 3 of which the driving of a motor vehicle is an element; or

   (b)has committed an offence against section 20, 111 or 122; or

   (c).... has behaved in a manner that indicates that his or her ability to drive the motor vehicle is impaired; or

   (d)has been involved in an accident,

   that member of the police force may, subject to subsection (2), require that person to submit to an alcotest or breath analysis, or both.

   (2)  An alcotest or breath analysis must be performed within two hours after the occurrence of the event giving rise to the belief referred to in subsection (1).

   (2a)  A member of the police force may require the driver of a motor vehicle that approaches a breath testing station established pursuant to section 47DA to submit to an alcotest.

   (2b)  Where an alcotest conducted under subsection (2a) indicates that the prescribed concentration of alcohol may be present in the blood of any person, a member of the police force may require that person to submit to a breath analysis.

   (3)  A person required under this section to submit to an alcotest or breath analysis must not refuse or fail to comply with all reasonable directions of a member of the police force in relation to the requirement and, in particular, must not refuse or fail to exhale into the apparatus by which the alcotest analysis is conducted in accordance with the directions of a member of the police force.”

1. Pursuant to s 47DA(4) the Commissioner of Police has established procedures to be followed by members of the police force on duty at a random breath testing station.  They are set out in General Order 8760.  The first page of that document states that legislation authorises the establishment of breath testing stations and then continues:

   “Pursuant to the Road Traffic Act, the Commissioner of Police must establish procedures designed to prevent undue delay or inconvenience to persons stopped at random breath testing stations. Members engaged in random breath testing duties must strictly comply with the operating procedures and instructions contained in this manual.”

General Order 8760 was in force at the relevant time.  The only provision of the Order which prescribes a procedure to be observed after a positive alcotest is para 5.4.1 which provides:

“If the alcotest proves positive, the driver must be further addressed in the manner recorded in the pro forma brief PD281 and escorted to the breath analysis operator.”

PD281 is a form which sets out the procedure to be followed once a driver has recorded a positive reading on an alcotest.  It provides space for recording of the conversation between the police officer and the driver.  The procedure prescribed on that form was adopted on this occasion.  It was an agreed fact at the trial that the procedures set out in General Order 8760 were designed to prevent, as far as reasonably practicable, any undue delay or inconvenience to persons stopped at the station.

The Operator’s Manual

1. General Order 8760 does not prescribe any time within which the breath analysis should be conducted or give any guidance on that question.  It says nothing about waiting for 20 minutes before conducting the breath analysis.  The instruction to wait 20 minutes is contained in an operator’s handbook given to police officers conducting breath analyses.  The handbook has been prepared by the Police Department.  The instructions for using the breath analysis instrument include the following:

   “IMPORTANT

   It is of the utmost importance that when using the instrument the instructions of the manufacturer are strictly adhered to.

   PRECONDITIONS FOR THE TEST

   The earliest a measurement can be performed is 20 minutes following the last intake of alcohol (this includes alcoholic mouth sprays or medicinal juices/drops which contain alcohol).

   A 20 MINUTES WAIT AFTER BELCHING/VOMITING

   Rinsing the mouth with water or non-alcoholic drink does not obviate the need for waiting the 20 minutes.

   Smoking also affects the measurement result; in such cases the waiting is 5 minutes, but this does not shorten the 20 minute waiting period.

   The person being tested should breathe normally and evenly, and not breathe in or out deeply several times (hyperventilation).  Hyperventilation can lead to a momentary reduction on the breath alcohol concentration.  In such cases the person being tested should first breathe normally for 2 minutes.”

The police have, therefore, established a regime which requires a period of 20 minutes between the time of the alcotest and the later breath analysis as a safeguard to ensure that alcohol and any foreign contaminating substances such as inhalers or other medicines are removed from the mouth.  That regime has been based, to some extent, on the operational instructions contained in the manufacturer’s manual for the breath analysis instrument used on this occasion, which provided that:

“It is essential to allow at least 15 minutes from the last intake of alcohol to the time of provision of the breath sample for analysis.  This waiting also applies after the use of mouth sprays, lozenge medications containing alcohol, and medications applied by aerosol.

The 15 minutes waiting period is also necessary after vomiting or belching.  Rinsing the mouth with water does not reduce the time needed before the person can be tested.  It is also necessary to ensure that the person being tested has not smoked within the previous five minutes.”

The regime is also grounded on experiments carried out by the Police Department in the early 1990s.  Those experiments disclosed that substances such as asthmatic spray and repellent remained in the breath for greater than 15 minutes.

1. The evidence showed that the delay in conducting the analysis of the appellant is breath had not been occasioned by any practical impediment but, instead, had been based on this regime of waiting for a period of 20 minutes between the alcotest and the breath analysis.  There was no evidence which directly explained the further delay of eight minutes.  However, the evidence and reference to the form PD281 completed by the police officer who conducted the alcotest shows that the appellant wished to be informed of the result of the alcotest.  The police officer was unsure whether he was at liberty to disclose the result.  He consulted another police officer and returned to tell the defendant that the reading was 0.155.  The time involved in this would easily account for the additional eight minutes.

The Appellant’s Case

1. The complainant had relied on the statutory presumption in s 47G(1) to prove the case against the appellant. That statutory presumption is not available unless “the requirements and procedures in relation to breath analysing instruments and breath analysis” under the Road Traffic Act have been complied with: s 47G(1) and Taylor v Daire (1982) 30 SASR 453; Police v Jervis (1998) 70 SASR 429 at 437. The appellant submitted that the police officer had not complied with a relevant requirement. He contended that the provisions of s 47DA(4) governed the administering of the breath analysis so that it was implicit that the breath analysis be conducted without undue delay. A delay of 28 minutes did not satisfy that requirement.

Did Section 47DA(4) Apply?

1. In Plunkett v Liddy (1991) 162 LSJS 452 it was held that s 47DA applied only to alcotests not breath analyses. That conclusion was not necessary for the decision in that case. The appellant submits that the decision was wrong.

2. Some support for the conclusion that s 47DA(4) applies to breath analyses as well as to alcotests is to be found in its legislative history.  The statutory predecessor of s 47DA was s 47da which was introduced into the Road Traffic Act by the Act No 46 of 1981.  Section 47da was in different terms from the present s 47DA.  It authorised police officers to conduct “breath tests” which were defined to mean an alcotest or a breath analysis.  A breath analysis was then defined, as it is now, as “an analysis of breath by breath analysing instruments”. Section 47da(4) provided:

   “The breath test shall be so conducted as to avoid undue delay or inconvenience to those affected.”

Given the definition of “breath test”, the obligation in s 47da(4) to conduct a breath test so as to avoid undue delay or inconvenience applied to both the alcotest and the breath analysis.

1. In 1985 s 47da was amended in a number of respects by the Act No 55 of 1985.  For present purposes it is necessary to notice two only of those amendments.  The first was that the reference to “breath tests” in s 47da was removed so that the section referred only to the conduct of alcotests.  The second was that s 47da(4) was repealed and replaced by a provision in almost identical terms to what is now s 47DA(4).  The new s 47da was expressed in almost identical terms to the present s 47DA. 

2. Three reasons suggest, notwithstanding the amendments of 1985, that the terms of s 47DA(4) apply to a breath analysis conducted under s 47E(2a) and (2ab) after a positive alcotest.  The first is that the obligation to submit to an alcotest and, if the test proves positive, to submit to a breath analysis was then contained, as it is now, in what was then s 47e in terms almost identical with the present s 47E.  The second is that the obligation in s 47DA(4) is intended to prevent undue delay or inconvenience “to persons stopped at the station”.  Persons stopped at the breath testing station include all those who are required to submit to an alcotest.  If the test is negative, the driver is permitted to proceed.  If the test is positive, the driver is required to undertake a breath analysis.  Those who record a positive result continue to fall into the class of “persons stopped at the station”.  Thirdly, the whole purpose of stopping drivers at a random breath testing station is to determine whether any driver has a blood alcohol level in excess of the prescribed maximum.  If the alcotest proves positive, the driver is required to submit to a breath analysis..

3. However, there are other factors which point to the conclusion that s 47DA(4) does not apply to a breath analysis.  First, one purpose of the 1985 amendments was to separate breath analyses from alcotests.  One reason for that was to deny any presumption that, in addition to alcotesters, a breath analysis instrument should necessarily be located at a random breath testing station.  The requirement of undue delay continued to apply to alcotests.  Had Parliament intended that the requirement to prevent undue delay should continue to apply also to a breath analysis, it could have easily said so.  In other words, the object of s 47DA(4) is limited to ensuring that drivers who do not record a positive alcotest result should be able to proceed on their journey with as little delay or inconvenience as possible.  Secondly, the process of administering a breath analysis will inevitably cause further delay and inconvenience to the driver who has recorded a positive test on the alcotester.  There is no requirement that a breath analysis instrument be present at the breath testing station.  It is possible that, on some occasions, a breath analysing instrument will not be located at the station and it may be necessary to bring a breath analysing instrument to the station or to take the person to a breath analysing instrument.  It cannot be predicted how long either would take.  It will depend on the circumstances of each occasion.  That is a further reason for concluding that it was for that reason that Parliament did not wish the obligation to avoid undue delay to apply to the breath analysis.

4. Another factor is that the obligation in s 47DA(4) is directed to the Commissioner of Police to establish procedures of the kind prescribed.  The Commissioner has published General Order 8760.  Examination of the order shows that it prescribes procedures which are designed to prevent as far as reasonably practicable any undue delay or inconvenience to persons stopped at the station for an alcotest.  The only requirement in relation to a breath analysis is that the police officer must address the driver in the manner provided in PD281 and escort the driver to a breath analysis operator.  There is no further provision concerning the administration of the breath analysis.  That may be explained by the fact that a breath analysing instrument may not be present at the breath testing station.

5. In the result, the arguments which point to the conclusion that the requirement to avoid undue delay does not apply in respect of a breath analysis are the more persuasive.  In particular the fact that the Parliament has amended the provision to delete the express requirements that both alcotests and breath analyses should be administered without undue delay is a telling factor.  With respect, the decision in Plunkett  v Liddy that s 47DA(4) does not apply to a breath analysis is correct.  In the absence of a statutory requirement to conduct the test without undue delay, the appellant must fail.

Was the Delay Undue?

1. For the reasons which follow, even if it is assumed that the breath test must be administered without undue delay or inconvenience, the delay, in this case of 28 minutes, did not constitute undue delay or inconvenience.

2. The judge appealed from concluded that it accorded with good sense and good practice to carry out the breath analysis in accordance with the instructions of the manufacturer of the breath analysis equipment.  Given that those instructions were to provide a minimum waiting time of 15 minutes after the last intake of alcohol, the police procedure requiring a driver to wait 20 minutes between the alcotest and the breath analysis was, it was held, not unreasonable.  The judge added that, if the police failed to comply with the manufacturer’s instructions and tested the driver immediately, it was clearly arguable that the breath analysis was flawed.  The appellant has not demonstrated why that conclusion should be disturbed.

3. The manufacturer’s instruction is “to allow at least 15 minutes from the last intake of alcohol to the time of provision of the breath sample for analysis” (emphasis added).  Police officers do not know when the last intake of alcohol by the driver occurred.  It could be a very short time, a matter of a few minutes only, before the driver is stopped at the random breath testing station.  It is not unreasonable, therefore, to translate a delay of at least 15 minutes into a 20 minute waiting period to ensure that the test will be effective.  The form PD281 requires the police officer to tell the driver not to take anything through the mouth until after the test.  It also requires him to keep the driver under continuous supervision until the test.  These are reasonable requirements given that there are certain substances which might readily be taken that will affect the breath analysis.

4. The legislation contemplates that there may be some delay or inconvenience.  What is proscribed is undue delay or inconvenience, that is to say, delay or inconvenience which is unjustifiable or excessive or disproportionate:  see Macquarie Dictionary and Oxford English Dictionary.  A delay of 20 minutes to comply with the manufacturer’s recommendations is not, in all the circumstances, unjustifiable or excessive or disproportionate.  If the breath analysis were conducted immediately, there is a real risk that, notwithstanding the fact that the machine is capable of detecting contaminants and mouth alcohol, there would be questions as to the propriety of proceeding in a manner which does not entirely conform with the manufacturer’s instructions.

5. The additional delay of eight minutes is accounted for by the appellant’s request to be informed of the result of the alcotest and the police officer’s inquiry to ascertain if he could disclose that information.  That delay was a consequence of the appellant’s request and could not, therefore, be regarded as compounding the waiting period.  It would not be reasonable to add it to the period of 20 minutes between the alcotest and the breath analysis. The overall delay of 28 minutes did not, therefore, constitute undue delay or inconvenience.

6. The appellant contended that, as the breath analysis instrument used on this occasion was capable of detecting contaminants and the presence of alcohol in the mouth as distinct from alcohol in the blood, there was no reason why the tests should not have been administered immediately.  He sought to reinforce that conclusion by pointing to the fact that the blood alcohol level may rise in the time between the alcotest and the breath analysis.  This could result, he said, in a driver being placed in a higher category of offending:  see the categories of offending in s 47A.  Those facts do not make the 20 minute delay period an undue delay.  The police are entitled to adopt a practice which will be likely to produce a correct analysis.  The procedure recommended in the police breath analysis operator’s handbook avoids the risk of contamination and is conducive to producing a correct analysis.  The procedure assists in avoiding the necessity to repeat the breath analysis if contaminants or alcohol in the mouth have been detected.  If contaminants exist, the breath analysis cannot be repeated until at least 15 minutes have elapsed.  The argument based on potential prejudice because of the possibility of a rising blood alcohol level must also be dismissed.  The fact that the blood alcohol level will be rising will not apply to all drivers.  In some cases it might be falling.  It would depend upon the amount of alcohol taken and the time of the last drink.  Furthermore, it is open to the driver to seek to rebut the breath analysis by requesting a blood test kit and undertaking a blood test:  see s 47G(2a).  In order to deal with a serious social problem, Parliament has prescribed a procedure which is intended to provide a more reliable result.  A positive alcotest indicates that there is a reasonable likelihood that the driver has a blood alcohol level higher than the permitted range.  The fact that the alcotest recorded a positive result justifies detention of the driver for a reasonable time within which to confirm the blood alcohol level.

1. For all of these reasons I would dismiss the appeal.