Road Traffic Offences

Case Study: Door Ajar for Drink Driving Appeals

A recent Full Court decision may lead to more successful appeals against some drink driving allegations in South Australia.

A recent Full Court decision may lead to more successful appeals against some drink driving allegations in South Australia.


In the recent case of Police v Dunstall, the Full Court of the Supreme Court of South Australia were asked to look at a decision of a Magistrate to dismiss a complaint against Mr Dunstall alleging that he was driving with a blood alcohol level over the legal limit (“PCA”). Mr Dunstall was offered a blood test kit and arranged for two blood samples to be taken from a hospital.  Mr Dunstall later learned that both of the blood samples taken were insufficient and denatured (no longer in a liquid form) and thus could not be analysed to determine what his true blood alcohol reading was. The Magistrate excluded the evidence of the breath analysis (0.155) and dismissed the Complaint. The police appealed. 

The police relied on the decision of Police v Hall which involved a similar situation to Mr Dunstall. In the case of Hall, Mr Hall was also offered a blood test kit and attended at the Royal Adelaide Hospital for a blood test. He waited five hours before his blood sample was taken and by that time, there was no alcohol in his blood. Mr Hall submitted that the result of the breath analysis should be excluded. In a 3-2 decision, the majority of the Full Court of the Supreme Court of South Australia held that prosecution could rely on the breath test and the fact that there was no blood sample to be tested, did not make the trial unfair. The Court held that there was no right to have a blood sample taken. 

In Mr Dunstall’s case, the Court took a different view. The Court held that Parliament had deemed it necessary to insert safeguards into the drink driving legislation by allowing for people to have their blood tested to determine their blood alcohol reading.  The Court held that people have only a limited avenue to test the accuracy of a breath test.  In Mr Dunstall’s case, he lost that opportunity to have his blood tested, through no fault of his own. The majority of the Court held that any trial of Mr Dunstall’s would have been unfair. 

What does this mean going forward? 

As a consequence of a string of decisions including Hall, it had been the view of some that there were limited avenues available to challenge a drink driving matter. However Dunstall is a significant decision that recognises the unfairness that can arise to an accused person.  For that reason, when you are faced with an allegation of drink driving, it is important to get advice as to whether all requirements under the legislation have been complied with. The presumption of the accuracy of the breath analysis can potentially be challenged and should at least be explored.

This is a complex area of law. If you have been accused of a drink driving offence, you should seek the advice of an experienced criminal lawyer.

TGB has many criminal lawyers specialising in road traffic offences. To arrange an appointment, contact your nearest TGB office