Whether a request to accompany an officer for a breath test was ambiguous may provide a defense to a refusal charge in an appropriate case
A preliminary breath test can be administered to any driver in Victoria. If that test detects the presence of alcohol, the officer who administered the test can ask the driver to submit to a more sophisticated breath analysis at some other location.
The law imposes “no enforceable obligation” on the driver to accompany the officer but refusing to do so is an offence. The driver cannot be arrested for refusing but a summons can be issued requiring the driver to appear in court to answer a charge of refusing a test.
What happens if the request to accompany the officer is ambiguous? A magistrate in Victoria answered that question in Bartlett v. Herbert.
Facts of the case
A detective senior constable (DSC) gave a driver a preliminary breath test that indicated the presence of alcohol. He asked the driver to accompany him to the police station to submit to a more sophisticated breath test. He told the driver that if the driver refused, he could be charged with an offence that could result in a fine and the loss of his licence. He also told the driver that he did not need to say or do anything but that anything he said or did could be used as evidence.
The driver said he did not have time to take the test as he had to be somewhere. The DSC told the driver he would receive a summons for refusing the test. The accused responded that he understood what would happen.
The issue before the court
The defence lawyer argued that the request to submit to a test was not valid. By telling the driver that he did not need to say or do anything (a caution that is usually given only to a person who has been arrested), the DSC’s request was ambiguous.
Before a driver can be considered to have refused a test, the officer must communicate two things:
- the requirement to accompany the officer for the purpose of taking the test, and
- the requirement to remain until the test is completed.
A request to accompany is only valid if those requirements are made clear.
The court’s decision
The court recognized that the DSC’s clear explanation of the driver’s obligation to accompany him was muddied by the DSC’s subsequent statement that the driver did not need to say or do anything. Had the conversation ended there, the ambiguity might have undermined the validity of the DSC’s request.
The court nevertheless decided that that the driver understood his obligation. When the driver explained to the DSC that he needed to leave, the DSC told the driver that he would receive a summons for refusing to accompany him if the driver left. The driver responded “that’s fine,” indicating that he understood the consequences of a refusal. The court therefore concluded that the request to accompany provided a valid basis for the refusal charge.
Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.