23Statutory presumptions with respect to breath analyses and blood tests, &c.

### 23 Statutory presumptions with respect to breath analyses and blood tests, &c. > > (1)  [*\[Section 23 Subsection (1) amended by No. 38 of 2017, s. 42, Applied:03 Dec 2018\]*](/view/html/inforce/2018-12-03/act-2017-038#GS42@Hpa@EN) *\[Section 23 Subsection (1) substituted by No. 94 of 1975, s. 18 \]*In any proceedings to which this Division applies, the concentration of alcohol in a sample of blood taken from a person in accordance with this Act shall be deemed to be the actual concentration of alcohol in his blood at the time at which the sample was taken, unless the contrary is proved. > > > (2)  [*\[Section 23 Subsection (2) amended by No. 28 of 2005, s. 18, Applied:01 Feb 2006\]*](/view/html/inforce/2006-02-01/act-2005-028#GS18@Hpa@EN) *\[Section 23 Subsection (2) substituted by No. 94 of 1975, s. 18 \]*In any proceedings to which this Division applies, the concentration of alcohol in the breath of a person as determined by a breath analysis that was properly carried out shall be deemed to be the actual concentration of alcohol in the breath of that person at the time at which he submitted to the analysis, unless it is shown on the balance of probabilities that the concentration of alcohol in his breath at the time was not greater than the prescribed concentration. > > > (3)  Where, in any proceedings to which this Division applies, there is a conflict between the evidence referred to in [subsection (1)](#GS23@Gs1@EN) and that referred to in [subsection (2)](#GS23@Gs2@EN) the former evidence shall prevail. > > > (4)  [*\[Section 23 Subsection (4) amended by No. 38 of 2017, s. 42, Applied:03 Dec 2018\]*](/view/html/inforce/2018-12-03/act-2017-038#GS42@Hpb@EN) [*\[Section 23 Subsection (4) amended by No. 28 of 2005, s. 18, Applied:01 Feb 2006\]*](/view/html/inforce/2006-02-01/act-2005-028#GS18@Hpd@EN) [*\[Section 23 Subsection (4) amended by No. 28 of 2005, s. 18, Applied:01 Feb 2006\]*](/view/html/inforce/2006-02-01/act-2005-028#GS18@Hpc@EN) [*\[Section 23 Subsection (4) amended by No. 28 of 2005, s. 18, Applied:01 Feb 2006\]*](/view/html/inforce/2006-02-01/act-2005-028#GS18@Hpb@EN) *\[Section 23 Subsection (4) amended by No. 91 of 1982, s. 12 \]*Where in any proceedings for an offence under [section 6](#GS6@EN) [(1)](#GS6@Gs1@EN) it is shown that the concentration of alcohol in the breath or blood of a person who became liable to submit to a breath analysis was, at any time within 6 hours after the relevant time, equal to or not less than a particular concentration (being a concentration not less than the prescribed concentration), that particular concentration shall be deemed to have been the concentration of alcohol in his breath or blood at the time of the relevant act of driving unless it is shown that the concentration of alcohol in his breath or blood at the time of that act of driving was not greater than the prescribed concentration. > > > (5)  [*\[Section 23 Subsection (5) amended by No. 38 of 2017, s. 42, Applied:03 Dec 2018\]*](/view/html/inforce/2018-12-03/act-2017-038#GS42@Hpc@EN) [*\[Section 23 Subsection (5) amended by No. 28 of 2005, s. 18, Applied:01 Feb 2006\]*](/view/html/inforce/2006-02-01/act-2005-028#GS18@Hpf@EN) [*\[Section 23 Subsection (5) amended by No. 28 of 2005, s. 18, Applied:01 Feb 2006\]*](/view/html/inforce/2006-02-01/act-2005-028#GS18@Hpe@EN) *\[Section 23 Subsection (5) amended by No. 91 of 1982, s. 12 \]*Where in any proceedings for an offence under [section 6](#GS6@EN) [(2)](#GS6@Gs2@EN) it is shown that a person who became liable to submit to a breath analysis had alcohol in his breath or blood at any time within 6 hours after the relevant time it shall be presumed, unless the contrary is proved, that he had alcohol in his breath or blood at the time of the relevant act of driving. > > > (6)  [*\[Section 23 Subsection (6) amended by No. 38 of 2017, s. 42, Applied:03 Dec 2018\]*](/view/html/inforce/2018-12-03/act-2017-038#GS42@Hpd@EN) [*\[Section 23 Subsection (6) amended by No. 28 of 2005, s. 18, Applied:01 Feb 2006\]*](/view/html/inforce/2006-02-01/act-2005-028#GS18@Hph@EN) [*\[Section 23 Subsection (6) amended by No. 28 of 2005, s. 18, Applied:01 Feb 2006\]*](/view/html/inforce/2006-02-01/act-2005-028#GS18@Hpg@EN) *\[Section 23 Subsection (6) amended by No. 91 of 1982, s. 12 \]*Where in any proceedings to which this Division applies (other than proceedings for an offence under [section 6](#GS6@EN) ), it is shown that the concentration of alcohol in the breath or blood of a person who became liable to submit to a breath analysis was, at any time within 6 hours after the relevant time, equal to or not less than a particular concentration, it shall be presumed, unless the contrary is proved, that the concentration of alcohol in the breath or blood of that person at the time of the relevant act of driving was not less than that particular concentration. > > > (7)  For the purposes of this section a breath analysis is properly carried out if it is carried out by means of a breath analysing instrument in proper working order operated by an approved operator in the manner prescribed. > > > (7A)  [*\[Section 23 Subsection (7A) inserted by No. 38 of 2017, s. 42, Applied:03 Dec 2018\]*](/view/html/inforce/2018-12-03/act-2017-038#GS42@Hpe@EN) Where in any proceedings for an offence under this Act, a person has submitted to a breath analysis but has declined or refused a request under this Act to submit to a sample of blood being taken in respect of the same offence, the person may not rebut a statutory presumption, within this section, in respect of the breath analysis. > > > (8)  *\[Section 23 Subsection (8) amended by No. 91 of 1982, s. 12 \]*For the purposes of this section, ***relevant act of driving***, in relation to a person against whom proceedings to which this Division applies are brought, means the act of driving alleged to be an ingredient of the crime or offence with which the person is charged in those proceedings.