128Alcohol in breath or blood determined by breath analysis

#### 128 Alcohol in breath or blood determined by breath analysis 128 Alcohol in breath or blood determined by breath analysis > > (1) This clause applies to proceedings for an offence under clause 120. > > > (2) Evidence may be given of the concentration of alcohol present in the breath or blood of the person charged, as determined by a breath analysing instrument operated by— > > > > > (a) a test supervisor, or > > > > > (b) a police officer authorised by the Commissioner of Police to carry out a breath analysis. > > > (3) The concentration of alcohol so determined is taken to be the concentration of alcohol in the breath or blood of the person charged at the time the person carried out the transport safety work to which the breath analysis relates if the breath analysis was made within 4 hours after that time, unless the person proves that the concentration of alcohol in the person’s breath or blood at that time was less than 0.02 grams of alcohol in 210 litres of breath or 100 millilitres of blood. > > > (4) A certificate purporting to be signed by a test supervisor or police officer and certifying each of the following is prima facie evidence of the particulars certified in and by the certificate— > > > > > (a) the test supervisor is duly authorised as a test supervisor or the police officer is authorised by the Commissioner of Police to carry out a breath analysis, > > > > > (b) the person named in the certificate submitted to a breath analysis, > > > > > (c) the apparatus used by the test supervisor or police officer to make the breath analysis was a breath analysing instrument, > > > > > (d) the analysis was made on the day and completed at the time stated in the certificate, > > > > > (e) a concentration of alcohol, determined by the breath analysing instrument and expressed in grams of alcohol in 210 litres of breath or 100 millilitres of blood, was present in the breath or blood of the person on the day and at the time stated in the certificate, > > > > > (f) a written statement required by clause 111(5) was delivered in accordance with that subclause. > > > (5) A certificate purporting to be signed by the Commissioner of Police and certifying that the police officer named in the certificate is authorised by the Commissioner of Police to carry out a breath analysis is prima facie evidence of the particulars certified in and by the certificate. > > > (6) Evidence of the condition of a breath analysing instrument or the way it was operated must not be required unless evidence that the instrument was not in proper condition or was not properly operated has been adduced. > > **cl 128:** Rep 2017 (595), Sch 1 \[41\]. Ins 2021 (483), Sch 1\[2\].