Section 97 of the Liquor Act 2007 (NSW) is concerned with Inadmissibility of Breath Testing Results and is set out below.
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97 Breath analysis equipment
(1) Evidence of the results of a test indicating the presence or concentration of alcohol in the breath or blood of a person by means of a breath analysing instrument installed on licensed premises is not admissible:
(a) in any civil proceedings against the licensee of the licensed premises (subject to subsection (2)), or
(b) in any criminal proceedings.
(2) This section does not prevent the admission into evidence in civil proceedings of the results of a test if it is established that at the time of the test:
(a) the breath analysing instrument concerned did not comply with the relevant Australian Standard (as in force at the date of the manufacture of the instrument), or
(b) the licensee was aware or should have been aware that the instrument was not operating correctly, or
(c) subsection (4) was being contravened in respect of the breath analysing instrument concerned.
(3) For the purposes of this section, a “breath analysing instrument” is an instrument that is designed to ascertain by analysis of a person’s breath the concentration of alcohol present in the person’s breath or blood, being an instrument of a type specified in AS 3547–1997: Breath alcohol testing devices for personal use, published by Standards Australia. That standard, as in force from time to time, is the relevant Australian Standard for the purposes of this section.
(4) At all times that a breath analysing instrument installed on licensed premises is available for use by patrons on those premises there must be prominently displayed on or in close proximity to the instrument a sign that complies with the requirements prescribed by the regulations.
(5) If subsection (4) is contravened, the licensee of the licensed premises is guilty of an offence. Maximum penalty: 20 penalty units.
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