58Evidentiary provisions—breath tests

58 Evidentiary provisions—breath tests S. 58(1) amended by Nos 66/1990 s. 3(2), 94/2003 ss 8(25), 10(8). (1) If the question whether any person was or was not at any time under the influence of intoxicating liquor or if the question 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— S. 58(1)(a) amended by No. 17/1994 s. 12(1)(a). (a) on a trial for murder or manslaughter or for negligently causing serious injury arising out of the driving of a motor vehicle; or S. 58(1)(ab) inserted by No. 17/1994 s. 12(1)(b). (ab) on a trial or hearing for an offence against Subdivision (4) of Division 1 of Part I of the **Crimes Act 1958** arising out of the driving of a motor vehicle; or S. 58(1)(b) amended by Nos 81/2006 s. 44(4), 93/2009 s. 49(2)(e). (b) on a trial or hearing for an offence against section 318(1) or 319(1) of the **Crimes Act 1958** arising out of the driving of a motor vehicle but not the operating of a vessel; or S. 58(1)(c) amended by No. 111/2003 s. 17(a). (c) on a hearing for an offence against section 49(1) of this Act; or S. 58(1)(d) inserted by No. 111/2003 s. 17(b). (d) in any proceedings conducted by a coroner— then, without affecting the admissibility of any evidence which might be given apart from the provisions of this section, 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 55 and the concentration of alcohol so indicated is, subject to compliance with section 55(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. 58(2) amended by Nos 19/1991 s. 22(2), 89/1991 s. 13(a)(b), 17/1994 s. 12(2)(a)–(d), 100/1995 s. 51(5), 57/1998 s. 4(5)(a), 94/2003 ss 8(25), 10(8). (2) A document purporting to be a certificate containing the prescribed particulars 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) and, subject to subsection (2E), is conclusive proof of— S. 58(2)(a) inserted by No. 17/1994 s. 12(2)(b). (a) the facts and matters contained in it; and S. 58(2)(b) inserted by No. 17/1994 s. 12(2)(b). (b) the fact that the instrument used was a breath analysing instrument within the meaning of this Act; and S. 58(2)(c) inserted by No. 17/1994 s. 12(2)(b). (c) the fact that the person who operated the instrument was authorised to do so by the Chief Commissioner of Police under section 55; and S. 58(2)(d) inserted by No. 17/1994 s. 12(2)(b). (d) the fact that all relevant regulations relating to the operation of the instrument were complied with; and S. 58(2)(e) inserted by No. 17/1994 s. 12(2)(b). (e) the fact that the instrument was in proper working order and properly operated; and S. 58(2)(f) inserted by No. 17/1994 s. 12(2)(b), substituted by No. 100/1995 s. 51(6). (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. 58(2A) inserted by No. 17/1994 s. 12(3). (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. 58(2B) inserted by No. 17/1994 s. 12(3). (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. 58(2C) inserted by No. 17/1994 s. 12(3). (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. 58(2C)(c) amended by No. 37/2014 s. 10(Sch. item 147.15). (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. 58(2D) inserted by No. 17/1994 s. 12(3). (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. 58(2E) inserted by No. 17/1994 s. 12(3), amended by No. 100/1995 s. 51(7). (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. 58(3) substituted by No. 94/2003 s. 14. (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 55 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 55 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 55— (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 Part; (b) that the breath analysing instrument was on that occasion in proper working order and properly operated by him or her; (c) that, in relation to the breath analysing instrument, all regulations made under this Part with respect to breath analysing instruments were complied with— is, in the absence of evidence to the contrary, proof of those facts. S. 58(5) substituted by No. 17/1994 s. 12(4), amended by Nos 32/2011 s. 8(2), 6/2018 s. 68(Sch. 2 item 109.2). (5) The statement on oath or by affirmation of a person authorised to operate a breath analysing instrument under section 55 when called as a witness that any apparatus used by him or her on any occasion under section 55 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. S. 58A inserted by No. 89/1991 s. 14.