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A driver whose blood alcohol content equals or exceeds 0.05% is in violation of the law

Legal challenges to more than a thousand drink driving and drug driving prosecutions are on the horizon given recent evidence that police officers in Victoria administered tests without having the authority to do so. To avoid consequences for the illegal actions of police officers, the Police Minister is hoping to change the law.

The problem

To operate breath analyzing instruments, conduct oral fluid tests, or make drug impairment assessments, an officer must be authorised. Officers are only authorised after they have completed the training to perform those tasks accurately. That law does not apply to preliminary roadside breath tests and saliva tests, which can be administered by any officer.

Under the Victoria Police Act that was in effect until last year, authorisations could be signed by a deputy commissioner. After the Police Regulations Act took effect in July 2014, only the chief commissioner could authorise an officer to perform the tests.

The Victoria Police apparently did not notice the change in the law. Deputy commissioners signed authorisations for 660 officers after the deputies were no longer empowered to do so. As a result, more than 1100 drivers were arrested or issued penalty notices based on tests that an officer was not properly authorised to perform.

The proposed solution

Rejecting the adage that “ignorance of the law is no excuse” -- at least when it applies to the Victoria Police -- Police Minister Wade Noonan is insisting that the legislature pass a law that will retroactively validate the use of unauthorised tests as evidence in prosecutions. The Police Minister claims that the failure of the Victoria Police to follow the law is a “mere technicality.”

The problem with the solution

A driver whose blood alcohol content equals or exceeds 0.05% is in violation of the law. That driver cannot claim that he did not understand the law and that his disobedience of it was a “mere technicality.” Should not the same standards apply to the police as everyone else?

The Police Minister is quoted as saying that the legislation is urgently needed “to mitigate the risk that enforcement actions conducted in reliance on evidence obtained by an officer operating under an invalid authorisation is adversely affected.” In other words, the Police Minister wants the legislation to avoid embarrassment for the Victoria Police.

The legislature presumably had good reason to change the law so that only the Chief Commissioner could authorise officers to administer tests. The legislature should resist the temptation to undo that legislation retroactively simply because the Victoria Police did not follow it. If it becomes more difficult to prosecute 1100 drivers as a consequence, perhaps the Victoria Police will learn the importance of understanding and following the law -- the same standard they expect from the public.

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.

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