S. 33(1) amended by Nos 20/1993 s. 10(1), 93/2009 s. 47(2), 66/2012 s. 16.
(1) If the question—
(a) whether any person was or was not at any time under the influence of alcohol; or
S. 33(1)(b) amended by No. 94/2003 ss 34(12), 35(7).
(b) as to the presence or the concentration of alcohol in the breath of any person at any time—
or if a result of a breath analysis is relevant on a hearing for an offence against section 28(1) or on a trial or hearing for an offence against section 318(1) or 319(1) of the Crimes Act 1958 arising out of the operating of a vessel or, in the case of a master or pilot, arising out of the direction of the operation of a vessel, then, without affecting the admissibility of any evidence which might be given apart from the provisions of this section—
S. 33(1)(c) amended by No. 94/2003 ss 34(12), 35(7).
(c) evidence may be given of the concentration of alcohol indicated to be present in the breath of that person by a breath analysing instrument operated by a person authorised to do so by the Chief Commissioner of Police under section 31; and
S. 33(1)(d) amended by No. 94/2003 ss 34(12), 35(7).
(d) the concentration of alcohol so indicated is, subject to compliance with section 31(4), evidence of the concentration of alcohol present in the breath of that person at the time his or her breath is analysed by the instrument.
S. 33(2) amended by Nos 20/1993 s. 10(2)(a)–(c), 17/1994 s. 19(1)(a)–(d), 100/1995 s. 33(6), 94/2003 ss 34(12), 35(7).
(2) A document purporting to be a certificate in the prescribed form produced by a breath analysing instrument of the concentration of alcohol indicated by the analysis to be present in the breath of a person and purporting to be signed by the person who operated the instrument is admissible in evidence in any proceedings referred to in subsection (1), subject to subsection (2E), is conclusive proof of—
S. 33(2)(a) inserted by No. 17/1994 s. 19(1)(b).
(a) the facts and matters contained in it; and
S. 33(2)(b) inserted by No. 17/1994 s. 19(1)(b).
(b) the fact that the instrument used was a breath analysing instrument within the meaning of this Act; and
S. 33(2)(c) inserted by No. 17/1994 s. 19(1)(b).
(c) the fact that the person who operated the instrument was authorised to do so by the Chief Commissioner of Police under section 31; and
S. 33(2)(d) inserted by No. 17/1994 s. 19(1)(b).
(d) the fact that all relevant regulations relating to the operation of the instrument were complied with; and
S. 33(2)(e) inserted by No. 17/1994 s. 19(1)(b).
(e) the fact that the instrument was in proper working order and properly operated; and
S. 33(2)(f) inserted by No. 17/1994 s. 19(1)(b), substituted by No. 100/1995 s. 33(7).
(f) the fact that the certificate is identical in its terms to another certificate produced by the instrument in respect of the sample of breath and that it was signed by the person who operated the instrument and given to the accused person as soon as practicable after the sample of breath was analysed—
unless the accused person gives notice in writing to the informant not less than 28 days before the hearing, or any shorter period ordered by the court or agreed to by the informant, that he or she requires the person giving the certificate to be called as a witness or that he or she intends to adduce evidence in rebuttal of any such fact or matter.
S. 33(2AA) inserted by No. 100/1995 s. 33(8), amended by No. 65/2010 s. 388.
(2AA) A certificate referred to in subsection (2) does not cease to be admissible in evidence or to be conclusive proof of the facts and matters referred to in that subsection only because of the fact that it refers to the Road Safety Act 1986 and not to the Marine (Drug, Alcohol and Pollution Control) Act 1988 and the reference to the Road Safety Act 1986 in that certificate and in each other certificate produced by the breath analysing instrument in respect of the sample of breath must be construed for all purposes as a reference to the Marine (Drug, Alcohol and Pollution Control) Act 1988.
S. 33(2A) inserted by No. 17/1994 s. 19(2).
(2A) A notice under subsection (2) must specify any fact or matter with which issue is taken and indicate the nature of any expert evidence which the accused person intends to have adduced at the hearing.
S. 33(2B) inserted by No. 17/1994 s. 19(2).
(2B) The accused person may not, except with the leave of the court, introduce expert evidence at the hearing if the nature of that evidence was not indicated in a notice under subsection (2).
S. 33(2C) inserted by No. 17/1994 s. 19(2).
(2C) If an accused person gives notice to the informant in accordance with subsection (2) that he or she requires the person giving a certificate to be called as a witness and the court is satisfied that that person—
(a) is dead; or
(b) is unfit by reason of his or her bodily or mental condition to testify as a witness; or
S. 33(2C)(c) amended by No. 37/2014 s. 10(Sch. item 106.10).
(c) has ceased to be a police officer or is out of Victoria and it is not reasonably practicable to secure his or her attendance; or
(d) cannot with reasonable diligence be found—
the court must order that subsection (2) has effect as if the notice had not been given.
S. 33(2D) inserted by No. 17/1994 s. 19(2).
(2D) A certificate referred to in subsection (2) remains admissible in evidence even if the accused person gives a notice under that subsection but, in that event, the certificate ceases to be conclusive proof of the facts and matters referred to in that subsection.
S. 33(2E) inserted by No. 17/1994 s. 19(2), amended by No. 100/1995 s. 33(9).
(2E) Nothing in subsection (2) prevents the informant adducing evidence to explain any fact or matter contained in a certificate referred to in subsection (2) and, if the informant does so, the certificate remains admissible in evidence but ceases to be conclusive proof of that fact or matter only.
S. 33(3) substituted by No. 94/2003 s. 38.
(3) In any proceeding under this Act—
(a) the statement of any person that on a particular date he or she was authorised by the Chief Commissioner of Police under section 31 to operate breath analysing instruments; or
(b) a certificate purporting to be signed by the Chief Commissioner of Police that a person named in it is authorised by the Chief Commissioner under section 31 to operate breath analysing instruments—
is admissible in evidence and, in the absence of evidence to the contrary, is proof of the authority of that person.
(4) Evidence by a person authorised to operate a breath analysing instrument under section 31—
(a) that an apparatus used by him or her on any occasion under that section was a breath analysing instrument within the meaning of this Act; and
(b) that the breath analysing instrument was on that occasion in proper working order and properly operated by him or her; and
(c) that, in relation to the breath analysing instrument, all regulations made under this Act with respect to breath analysing instruments were complied with—
is, in the absence of evidence to the contrary, proof of those facts.
S. 33(5) substituted by No. 17/1994 s. 19(3), amended by Nos 55/2017 s. 39, 6/2018 s. 68(Sch. 2 item 85.2).
(5) The statement on oath or by affirmation of a person authorised to operate a breath analysing instrument under section 31 when called as a witness that any apparatus used by him or her on any occasion under section 31 had written, inscribed or impressed on some portion of it or on a plate attached to it the expressions—
(a) "Alcotest 7110" and "3530791"; or
(b) "Alcotest 9510 AUS" and "8320869"—
whether with or without other expressions or abbreviations of expressions, commas, full stops, hyphens or other punctuation marks and whether or not all or any of the numbers are boxed in is, in the absence of evidence to the contrary, proof that the apparatus is a breath analysing instrument within the meaning of this Act.