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Monday, 5 August 2013

I certify that I tested...nothing! Alcohol & drug-driving tests in the spotlight

A recent case in the County Court has set the cat amongst the pigeons, after highlighting that some alcohol and drug-driving tests weren’t done by the person named on a certificate of analysis tendered by the prosecution.

The case was Warren v Wesselman, an appeal at the County Court at Shepparton in May 2013, before Judge Lacava. As best as I know there was no written decision. It dealt with a drink-driving prosecution relying on a blood-test under Road Safety Act 1986 s 57.

The appellant Warren was charged with exceeding the prescribed concentration of alcohol, contrary to s 49(1)(b) and (g) of the Act.

The certificate of analysis under s 57(4) used a standard wording found (at least, up till now) on many such certificates:

I, [name of properly qualified analyst] of the Victorian Institute of Forensic medicine, an approved analyst under Section 57(4) of the Road Safety Act 1986, hereby certify that for this sample received at VIFM, I am responsible for the analysis conducted on [date] using gas chromatography and this sample was found to contain not less that [amount] gm of alcohol per 100 millilitres of blood. ([amount] per centum).
Section 57(1) provides two ways a person can be a properly qualified analyst:

57. Evidentiary provisions-blood tests

(1) In this section—

(a) properly qualified analyst means-

(i) an approved analyst; or

(ii) a person who is considered by the presiding judge, a coroner, or the Magistrates’ Court to have scientific qualifications, training and experience that qualifies him or her to carry out the analysis and to express an opinion as to the facts and matters contained in a certificate under subsection (4) or (4A), as the case requires; and

...

(b) approved analyst means a person who has been approved by Order of the Governor in Council published in the Government Gazette as a properly qualified analyst for the purposes of this section; and

The scientists who work at the Victorian Institute for Forensic Medicine and who do the testing, but are not approved analysts, certainly have the scientific qualifications to carry out the analyses they perform.  (If you don’t believe me, try suggesting otherwise to them in cross-examination, and let me know how that goes.) They go through some fairly rigorous in-house training and testing before they are eventually recommended for gazettal as approved analysts. Until that occurs, they are not permitted to sign certificates of analysis expressing an opinion about the facts and matters contained in such certificates.

That raises the question if their training and experience is sufficient for a Court to consider them a properly qualified analyst? If the VIFM doesn’t consider them sufficiently trained and qualified to express such opinions, should the Court? And, practically, how could the Court ever make that determination without ever hearing from the scientist? (Remember, the whole certificate process is intended to avoid the need for scientists to attend court.)

But apparently in Warren v Wesselman there was no dispute that the person who signed the certificate was indeed a properly qualified analyst, as defined in s 57(1), because they were an approved analyst.


The problem in the case was, the person who did the actual testing of the blood sample was somebody else, and not the person who signed the certificate!

This is a problem when the prosecution relies on the certificate of analysis to prove the concentration of alcohol alleged in the blood of the accused motorist. (And, aside from a smattering of cases, that’s every case.)

Section 57(2) provides for certain offences, including drink-driving, that:

...without affecting the admissibility of any evidence which might be given apart from the provisions of this section, evidence may be given of the taking, after that person drove or was in charge of a motor vehicle, of a sample of blood from that person by a registered medical practitioner or an approved health professional, of the analysis of that sample of blood by a properly qualified analyst within twelve months after it was taken, of the presence of alcohol or any other drug and, if alcohol is present, of the concentration of alcohol expressed in grams per 100 millilitres of blood found by that analyst to be present in that sample of blood at the time of analysis and, if a drug is present, evidence may be given by a properly qualified expert of the usual effect of that drug on behaviour when consumed or used (including its effect on a person’s ability to drive properly).

Section 57(4) provides for evidence of that analysis and result by a certificate which is conclusive unless set aside, usually by application under s 57(7):

A certificate containing the prescribed particulars purporting to be signed by an approved analyst as to the concentration of alcohol expressed in grams per 100 millilitres of blood found in any sample of blood analysed by the analyst is admissible in evidence in any proceedings referred to in subsection (2) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.
 The prescribed particulars are set out in Road Safety (General) Regulations 2009 reg 13:

13. Certificate under section 57(4)

A certificate under section 57(4) of the Act must, in addition to a statement as to the concentration of alcohol found in the sample of blood, contain the following particulars—

(a) a statement by the analyst that he or she is an approved analyst within the meaning of section 57 of the Act; and

(b) a statement as to the method of analysis used; and

(c) the name and signature of the analyst; and

(d) the date on which the analysis was conducted; and

(e) a description of the contents of the identification label referred to in regulation 11(1)(d) attached to the container in which the blood sample is placed.
The effect of all of these provisions clearly indicates that the analyst who signs the certificate must be the analyst who conducts the analysis referred to in s 57(2). If not, the document the prosecution relies on will not be a ‘Certificate of Analysis’ within the meaning of s 57(4) and so inadmissible.

Similar provisions apply also for drug testing of saliva under s 55E and s 57B.

The other problem I reckon might arise in these cases is the limited purposes authorising taking samples for alcohol or drug testing.

For blood samples taken after a person is taken to hospital, s 56(6) provides that evidence of taking the person’s blood or analysis of the blood may not be used as evidence in any legal proceedings except for the purpose of s 57 or under the Transport Accident Act. That is, if the sample is taken for analysis by a properly qualified analyst, it’s for the purpose of s 57, but not otherwise. The sample couldn’t be taken for the purpose of sending it to Gribbles Pathology for example, any more than (arguably) it couldn’t be sent to a scientist at VIFM who isn’t a properly qualified analyst.

That argument is stronger for oral fluid samples that lead to drug testing, because the power to require a person to provide a saliva sample under s 55E(2) is ultimately only for analysis by a properly qualified analyst, and no other.

To my knowledge, since this appeal, the police have been identifying affected cases and quite properly advising accused people or their lawyers. However, it’s probably prudent to enquire after cases that might be affected, just in case.

I haven’t seen any certificates of analysis signed since this appeal, but I expect the wording won’t change, just that the identity of the signatory will now be that of the testing scientist.

4 comments:

Jeremy Gans said...

I'm not sure that these provisions 'clearly' indicate that the signing analyst must be the analysing analyst. Yes, there are some indications that way (though I don't think reg 13 can properly affect the meaning of s57(4)). On the other hand, there's the oddity, as you note at the start of your post, that s57(2) permits analysis by a properly qualified analyst but s57(4) only allows certificates by an approved analyst. The question is whether that is meant to limit the 57(4) scheme to analyses done by approved analysts (which may be a major limit, depending on how much analysis is typically done by non-approved analysts), or is it to allow certificate evidence to be given of analysis by properly qualified (but non-approved) analysts, with the signing approved analyst playing the role of verifying the non-approved analyst's work? (A further complication is 57(7)'s scheme for the accused to require people to attend to cross-examination. That scheme covers the signer and any other employee at the place of analysis, arguably favouring the second option. The limited wording of s57(7A)(b)(iv) is a further complication, though.) What is clear is that the drafting of the provisions is rubbish.

Interestingly, these very issues have been heavily debated at the highest levels in the US in the context of the 6th Amendment's Confrontation Clause. The most pertinent case is Bullcoming v New Mexico 564 US ___ (2011), which seems to involve similar facts and a similar (but narrow) outcome to Lacava's ruling. The USSC continues to grapple with tricky questions such as whether a human witness is needed for largely automated analysis, who exactly does the analysis in a multi-person lab, whether a supervisor can be regarded as 'the' analyst, etc, albeit in a different legal context. Similar issues also arise under an alternative certificate regime in s177 of the Evidence Act 2008, which talks about 'opinion' rather than analysis (and therefore perhaps more amenable to a 'supervisor' construction, perhaps relying also on s60 of the UEL.) What a pity that Lacava's judgment isn't published.

Kyle McDonald said...

Jeremy, I reckon the use of articles and possessive pronouns suggest almost inevitably to who has to do the testing! But, it's one of those things up for argument until decided at appellate level. At least, in the forensic environment!

Thanks for the info about the US case. You don't know if it's accessible on the internet? I'm interested in reading that.

(In fact, there's a lot of US evidence law that is increasingly helpful here. You don't know of any good places for Oz practitioners to learn such stuff?)

Jeremy Gans said...

Here's the US case: http://www.supremecourt.gov/opinions/10pdf/09-10876.pdf

Potentially more illuminating is an excellent blog devoted to the Confrontation Clause, which has spent a lot of time tracking this issue: http://confrontationright.blogspot.com.au/. (Seems to have died of late, though.)

Kyle McDonald said...

Thanks for the links. Interesting. Gotta confess, the right to confrontation hadn't occurred to me.

What do you think though of our Charter s 25(2)(g) where that right is qualified by "unless otherwise provided for by law"? That would seem to allow for provisions such as those in the Road Safety Act?