40SCircumstances in which certificate not admissible in proceedings

1. A certificate referred to in section 40O(2), (3), or (4) is not admissible in evidence in proceedings for an offence against this Part if the court, on application made by the defendant not less than 14 days before the hearing, orders that the medical practitioner or medical officer who gave the certificate must appear as a witness at the hearing.

2. No certificate referred to in section 40O(5) is admissible in evidence in proceedings for an offence against this Part if—

3. an application has been made in accordance with section 40N for the blood specimen to be sent to a private analyst; and
4. the specimen has not been sent to the private analyst in compliance with the application.

5. However, subsection (2) does not apply in respect of a specimen destroyed under the authority of section 40N(7) before the date of the application.

6. No certificate referred to in section 40O(5) or (6) is admissible in evidence in proceedings for an offence against this Part if the court, on application made by the defendant not less than 14 days before the hearing, orders that,—

7. in the case of a certificate referred to in section 40O(5), the person who made the analysis or the approved analyst who gave the certificate ought to appear as a witness at the hearing; or
8. in the case of a certificate referred to in section 40O(6), the person who posted or delivered the specimen, or the person who gave the specimen to the courier, or the approved analyst who gave the certificate ought to appear as a witness at the hearing.

9. The court may not make an order under subsection (4) unless the application made by the defendant under that subsection is accompanied by an affidavit, sworn by the private analyst who is specified in the defendant's application under section 40N, to the effect that,—

10. since the date given to the private analyst as the date on which application was made under section 40N for the sending to the analyst of a blood specimen relating to the defendant, the analyst has not received any such specimen; or
11. the blood specimen received by the private analyst relating to the defendant—
    1. was not suitable for analysis; or
    2. was suitable for analysis but, for specified reasons, that analysis was not carried out; or
    3. was suitable for analysis and that analysis was carried out but, for specified reasons, the results of the analysis are not available; or
12. the blood specimen received by the private analyst relating to the defendant has been analysed and found to contain not more than 50 milligrams of alcohol per 100 millilitres of blood; or
13. the blood specimen received by the private analyst relating to the defendant has been analysed and found to contain 20 milligrams or more of alcohol per 100 millilitres of blood more or less than the proportion of alcohol per 100 millilitres of blood specified in the certificate referred to in section 40O(5).

14. If a blood specimen is destroyed in accordance with section 40N(7), that act does not affect the admissibility in proceedings of a certificate given in respect of the specimen by an approved analyst for the purposes of this Part.