In drink driving hospital cases, if a driver is taken to hospital, there are specific issues that must have been addressed by police for the prosecution to succeed. Issues of consent and reasonable excuse for failing to supply a sample should almost certainly be considered in every case where the driver has been taken to hospital.
If a hospital patient is required to participate in a preliminary breath test, providing the treating medical practitioner is notified and does not raise objection that the test would amount to prejudicial interference to the proper care and treatment of the patient, there is no reason why the patient should not comply with the request.
If a patient fails the preliminary test, or in some cases, where no preliminary test has been performed but the police wish to move to obtain an evidential test, they have the power to do so.
Historically, if a patient was unconscious, it was possible to argue that they could not consent to a blood specimen being taken. However, as from 01 October 2002, the police may request a blood specimen be taken by involving a medical practitioner who is not in any way in charge of the patientís care.
The law governing this rather specific situation is complex, however, and we recommend you seek legal advice if you are seeking to mount a defence relating to valid consent.
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