Anthony Dowsley
Herald Sun November 02, 2009 12:00AM
KILLER drivers could dodge some of our toughest road laws because of a loophole affecting blood alcohol and drug testing.
Concerns are held that a ruling in a culpable driving court case may open the way for all drivers to contest blood samples recording alcohol and drug content.
A judge hearing the case against Mark Shannon, who was at the wheel of a car in which Samantha Saul, a woman he had just met, was killed, disallowed a blood reading because Shannon claimed he had not received a blood sample.
The County Court heard Shannon was recorded with a .119 reading, more than twice the legal limit, and was travelling at more than twice the speed limit when he was T-boned by another car as he drove through a red light at the city intersection of King and Flinders streets in August 2005.
The decision has outraged the victim's family and police are worried it has implications for all future culpable driving cases.
Shannon, 30, who pleaded guilty to the lesser charges of dangerous driving causing death and two counts of negligently causing serious injury was last Thursday jailed by Judge Stuart Campbell for a minimum of two years.
But during legal argument in September, Judge Campbell accepted it would not be fair to Shannon if he did not have a sample of blood he could have independently analysed.
Argument was heard on whether the Royal Melbourne Hospital doctor who took the blood samples complied with all regulations in taking and distributing the samples. Three blood samples were taken, one of which the doctor testified was put with Shannon's belongings as required by the Road Safety Act 1986, while another two were given to police to test.
Although Judge Campbell said he was satisfied the doctor had complied with the legislation, defence lawyer Brendan Murphy, QC, had evidence of the blood samples disallowed after sworn evidence from Shannon, his father and his girlfriend that he did not receive his sample, which was allegedly left at the foot of his hospital bed.
The prosecution subsequently dropped a culpable driving causing death charge because of the ruling.
Dangerous driving causing death at the time of the incident had a maximum penalty of five years' jail, much less than the 20 years available in culpable driving cases.
Ms Saul's mother, Barbara, wrote to Attorney-General Rob Hulls for support, but said her pleas were ignored.
"This is about rotten legislation," Ms Saul said. "If he can't help, who can? It's a precedent for every drink driver to have it (blood readings) thrown out. It's ludicrous".
Police sources have told the Herald Sun they are worried all culpable driving cases in which blood samples are taken could be in jeopardy.
"It's a ruling that has the potential to impact upon every blood alcohol content case," a police source said. "Every case we have involving drug and alcohol which we take blood for is in peril."
Inspector Martin Boorman of the traffic, drugs and alcohol section said other court rulings would be monitored.
"By its very nature it is of concern," he said. "I'm not sure that it is going to apply in all cases because it is based on one judge's decision."
Insp Boorman said the issue would be raised in reviews of laws about blood alcohol concentration.
Mr Murphy said later the ruling would be persuasive only in similar cases. "The judge was not satisfied the accused got his sample," he said. "Procedures were not followed."
The Office of Public Prosecution will consider whether to ask the government to tighten the law.
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