Generally it is not possible to challenge the results of a breath test taken within 2 hours of driving without a blood test. Legal advice should be sought if the breath test is taken more than 2 hours after driving, or if the driver has consumed alcohol after driving but before the breath test is taken.
It may be possible to challenge the results of the breath test relied on for a DUI or PCA offence where:
- the driver satisfies the court that he or she has consumed alcohol after driving but before the breath test; and
- the driver did not consume the alcohol following the police request that he or she submit to the breath test; and
- if there was an accident and the driver discharged all duties required to be discharged at the scene of the accident; and
- taking into account the quantity of alcohol consumed after driving, the driver should not be found guilty or should be found guilty of a lesser category offence.
It will be a question of whether the driver is believed that any alcohol was consumed after the driving and what effect that alcohol had on the driver's blood alcohol level. It is possible that the court may find the driver guilty of a lesser offence (instead of an alcohol level of 0.15 BAC the court may decide the reading should be 0.09 BAC or may find the driver not guilty [Road Traffic Act 1961 (SA) s 47GA].
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.