79Circumstances in which certificate not admissible in proceedings

1. No certificate referred to in subsection (2) or subsection (3) or subsection (4) of section 75 (which certificates relate to the taking of a blood specimen by a health practitioner or medical officer) is admissible in evidence in proceedings for an offence against this Act if the court, on application made by the defendant not less than 14 days before the hearing, orders that the health practitioner or medical officer who gave the certificate ought to appear as a witness at the hearing.

2. No certificate referred to in section 75(5) (which certificate is given by an approved analyst and relates to the presence or proportion of alcohol, a drug, or both, found to be in a blood specimen) is admissible in evidence in proceedings for an offence against this Act if—

3. application has been made in accordance with section 74 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;—
but this subsection does not apply in respect of a specimen destroyed under the authority of section 74(8) before the date of the application.

5. No certificate referred to in subsection (5) or subsection (6) of section 75 (which certificate is given by an approved analyst and relates to the presence or proportion of alcohol, a drug, or both, in a blood specimen, or to the sending of a specimen to a private analyst) is admissible in evidence in proceedings for an offence against this Act if the court, on application made by the defendant not less than 14 days before the hearing, orders that,—

6. in the case of a certificate referred to in that subsection (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
7. in the case of a certificate referred to in that subsection (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.

8. The court may not make an order under subsection (3) 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 74, to the effect that,—

9. since the date given to the private analyst as the date on which application was made under section 74 for the sending to the analyst of a blood specimen relating to the defendant, the analyst has not received any such specimen; or
10. 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
11. the blood specimen received by the private analyst relating to the defendant has been analysed and found to contain, in the case of a certificate that certified the presence of or a specified proportion of alcohol,—
    1. in the case of a defendant who (at the time of the commission of the offence) was younger than 20 or held an alcohol interlock licence or a zero alcohol licence, no alcohol; or
    2. in any other case, not more than 50 milligrams of alcohol per 100 millilitres of blood; or
12. the blood specimen received by the private analyst relating to the defendant has been analysed and found to contain, in the case of a certificate that certified the presence of or a specified proportion of alcohol, 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 75(5); or
13. the blood specimen received by the private analyst relating to the defendant has been analysed and found to contain,—
    1. if a certificate certified that there is evidence of use of a listed qualifying drug, a blood concentration level equal to or less than the tolerance level for the drug; or
    2. if a certificate certified that there is evidence of use of an unlisted qualifying drug, no presence of the qualifying drug.

14. Where a blood specimen is destroyed in accordance with section 74(8), 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 Act.

Compare

• 1962 No 135 s 58H

Notes

• Section 79(1): amended, on 7 November 2018, by section 16 of the Land Transport Amendment Act 2016 (2016 No 77).
• Section 79(1): amended, on 18 September 2004, by section 175(1) of the Health Practitioners Competence Assurance Act 2003 (2003 No 48).
• Section 79(2): amended, on 1 November 2009, by section 20(1) of the Land Transport Amendment Act 2009 (2009 No 17).
• Section 79(2)(a): amended, on 5 November 2011, by section 39(1) of the Land Transport (Road Safety and Other Matters) Amendment Act 2011 (2011 No 13).
• Section 79(2)(b): amended, on 5 November 2011, by section 39(2) of the Land Transport (Road Safety and Other Matters) Amendment Act 2011 (2011 No 13).
• Section 79(3): amended, on 5 November 2011, by section 39(3) of the Land Transport (Road Safety and Other Matters) Amendment Act 2011 (2011 No 13).
• Section 79(3): amended, on 1 November 2009, by section 20(2) of the Land Transport Amendment Act 2009 (2009 No 17).
• Section 79(3)(b): amended, on 5 November 2011, by section 39(4) of the Land Transport (Road Safety and Other Matters) Amendment Act 2011 (2011 No 13).
• Section 79(4)(c): replaced, on 11 March 2023, by section 26 of the Land Transport (Drug Driving) Amendment Act 2022 (2022 No 5).
• Section 79(4)(d): replaced, on 11 March 2023, by section 26 of the Land Transport (Drug Driving) Amendment Act 2022 (2022 No 5).
• Section 79(4)(e): replaced, on 11 March 2023, by section 26 of the Land Transport (Drug Driving) Amendment Act 2022 (2022 No 5).