A certificate of blood alcohol concentration under s 80(16F) of the TORUM is conclusive evidence of blood alcohol level but not conclusive evidence that a person was adversely affected by alcohol for the purposes of s 328A(4) of the Criminal Code, except where the concentration exceeds 0.150 and s 80(24A)(c) applies. Whether a person was adversely affected by alcohol remains a question of fact for the jury on all the evidence, including lay observations of intoxication, and a blood alcohol concentration below 0.05 does not establish that the person was not adversely affected. There is a divergence of views within the Court as to whether s 328A(4) requires proof of adverse effect specifically on driving ability (Keane JA) or merely adverse effect by alcohol generally (Jerrard JA).
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