Under the Road Transport (Safety & Traffic Management) Act 1999 Police have the power under Section 13 of that Act to conduct random breath tests to eliminate Drink Driving. The operative word is random and the Police do not need the driver of a motor vehicle to have committed any offence before a formal demand can be placed upon that driver to undergo a breath test. This is commonly known as the Police seeking a road side breath test.
Under Section 14 of the same Act if a formal demand is placed upon the driver of a motor vehicle to provide a breath sample and if that driver fails or refuses to provide a proper sample then that person can be arrested and there is a penalty for refusing to provide or failing to provide a sufficient sample. If the driver of a motor vehicle does submit himself or herself to a road side breath test but declines to or refuses to provide a sufficient sample of breath for analysis either at a Police station or in a breath analysis bus then there are more substantial penalties for that offence then if one refuses a road side breath test.
There are certain categories of range of concentration which apply to certain drivers of motor vehicles. A novice driver includes a holder of a learners licence or a person who has had a learners licence or provisional licence refused or has never held any class of licence and that person is restricted to a blood alcohol concentration of .02; a special category driver includes generally a provisional driver or a person who has had their drivers licence suspended or disqualified and a blood alcohol concentration of between .02 grams of alcohol in 210 litres of blood or 100 millilitres of blood but less than .05 grams of alcohol. So far as full licence holders there are three categories of blood alcohol concentration and they are:
- Low range, where readings of between .05 grams of alcohol but less than .08 grams of alcohol are applicable;
- Midrange prescribed concentration of alcohol where readings of .08 grams of alcohol but less than .15;
- High range where a reading of .15 and above is recorded.
With respect to each of the special range; low range; mid range; and high range prescribed concentration of alcohol are concerned if a driver has been convicted within the last 5 years of a major driving offence then the penalty applicable for the current offence is increased. A major driving offence includes driving with the prescribed concentration of alcohol in your blood; driving in a furious/reckless manner or driving at a speed or in a manner dangerous to the public; driving in a menacing manner; refusing a breath test or refusing a breath analysis; driving whilst suspended or disqualified.
There are defences which are available to drivers with respect to the breath analysis legislation and those defences can depend upon where a demand is placed upon a driver to undertake a “road side” breath test or when the driver is subject to breath analysis at a Police station or in a Police Mobile Breath Analysis vehicle.
A driver should always submit oneself to either a road side breath test or a breath analysis because, as above stated, penalties can apply if one declines to do so and then the legality of the police action could later be tested in Court and if the Court holds that the police were not authorised, because of the law applicable to this legislation, to submit the driver to the road side breath test or the breath analysis then the results of that test can be excluded as evidence.
Persons who commit an offence under this legislation may, at times, be called the “everyday” person. It is accepted that these offences can be classified as criminal offences particularly because gaol sentences or sentences of imprisonment can be imposed with respect to midrange and high range prescribed concentration of alcohol offences, and at times persons who are otherwise of an impeccable past can make errors and commit these offences.
It is recommended therefore that all persons charged with a prescribed concentration of alcohol offence at least obtain advice about the allegation because even if a plea of guilty is to be entered then a court does not always have to convict an offender and if there is no conviction recorded then there is no disqualification.
This article was written by Michael Kirby, a solicitor who left Adams & Partners in 2014.