By Shaun Pascoe. Solicitor at Doogue + George Defence Lawyers
We quite frequently and commonly deal with drink driving cases that involve the client failing to accompany the police for the purpose of providing a breath sample or accompanying them and leaving before providing a sample.
These charges carry mandatory disqualification periods of 2 years for a first offence and double if the client has previously been charged with a relevant offence.
Recently, the Court of Appeal has ruled on two separate cases DPP v Piscopo and DPP v Rukandin on Refuse Breath Test offences under section 49(1)(e) of the Road Safety Act., impacting the way these cases are considered.
What do these Court of Appeal decisions bring to light?
The Court of Appeal found that the requirement to accompany and the requirement to remain were different requirements. Accordingly, a driver might commit the offence of refusing a breath test by:
Failing to accompany a police officer to a place for the purpose of providing an evidentiary breath test.
Failing to remain at that place until they have furnished a sample of breath and received a certificate or 3 hours after driving has elapsed (whichever is the shorter period).
Therefore, a police officer requiring a driver to accompany them for the purpose of obtaining an evidentiary breath test (ie to a booze bus or police station) need not inform the driver of the three hour limit.
However, a police officer requiring someone to remain at a place (police station or booze bus) must inform the driver that they will only be required to remain for a maximum of three hours after driving.
So, if the driver has accompanied the police officer and seeks to leave, they will only be committing a relevant offence if the police officer has communicated a requirement to remain.
This requirement must inform the driver that they will only be required to remain at that place until they have furnished a sample of breath and received a certificate or three hours after driving have elapsed (whichever is the shorter period).
Lawyers defending charges relating to failure to provide breath sample offences should be very careful to note the distinctions in these cases.
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