A police officer has very broad powers around random breath testing motorists in New South Wales. In fact, a police officer can decide to stop and breath test RBT you without any reason other than because you are or were driving a motor vehicle on a road. It is illegal to breath test you on your property and in other limited circumstances in NSW, according to random breath testing NSW legislation.
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RANDOM BREATH TESTING PROCEDURE | WHEN ARE POLICE ALLOWED TO CONDUCT AN RBT IN NSW?
RBT meaning stands for 'Random Breath Test'. It is a procedure whereby a police officer may breath test a motorist on a road at random without any reason other than the fact that the motorist is or was driving on a road.
RBT tests can occur anywhere and anytime with some restrictions and exceptions which we will outline in this article.
Can you Get Pulled Over for a RBT?
What are the rules for an RBT? The following is an outline on what you need to know.
Can Police Request motorists to stop their vehicles for any reason?
For the purposes of a random breath test, also known as RBT, a police officer is allowed to request or signal a driver of a motor vehicle to stop.
Is a motorist required to stop if signalled by police to stop?
As a motorist driving on a road, you are lawfully required to stop your vehicle if signalled or requested to do so by a police officer for the purposes of an RBT breath test.
Is it a crime to refuse or fail to stop your vehicle when requested by police to stop?
Failing or refusing to stop your vehicle when requested or signalled to stop by a police officer carries up to $1,100 fine, according to clause 3(4) of schedule 3 Road Transport Act 2013 (NSW). This does not carry a disqualification.
Do You Have to do a Random Breath Test?
When can police request a breath test? And do you have to submit to an RBT?
A police officer in New South Wales can lawfully require you to submit to an RBT breath test if the police officer has "reasonable cause" to believe that you:
- are/were driving a motor vehicle on a road, or
- are/were occupying the driving seat of a motor vehicle on a road and attempting to put the vehicle in motion, or
- are/were occupying the seat in a motor vehicle next to a learner driver while the driver is or was driving the vehicle on a road.
What law gives this power to police? Clause 3 of Schedule 3 Road Transport Act 2013 (NSW).
"A reasonable cause to believe" will normally be based around the the police officer's observations of you in the driver seat of a motor vehicle.
In order for a police officer to legally breath test you he/she does not have to suspect that you are intoxicated. They can require you to submit to an RBT anyway.
This basically means that police can breath test you anytime if you are or were driving a vehicle on a road in NSW. They don't need a warrant or any other reason to do it.
WHAT HAPPENS IF YOU FAIL A RANDOM BREATH TEST?
Will I Be Arrested from an RBT?
A police officer can lawfully arrest you as a result of giving a positive RBT, and this can occur without a warrant. Being arrested will mean that you are not free to leave at your will. This can only happen if any one of the following apply:
- the breath test device returns a positive indication that there may be present in your breath or blood a concentration or alcohol or more than the legal limit (in 210 litres of breath or 100ml of blood), or
- you refused or failed to submit to a breath test(RBT) when required by police.
What happens after being arrested? After being arrested, the police officer can then lawfully take you, with such force as may be necessary, to a police station or such other place as the officer considers desirable for you to be detained in order to for you to submit to a "breath analysis". The breath analysis usually takes place back at the police station or a nearby RBT bus stationed close to where police are conducting their RBT.
Breath analysis vs breath test: a breath analysis is considered to return an accurate reading of the extent of alcohol in your body, which is then used as evidence in court to prove your level of impairment to prove drink driving charges in court. In comparison, a breath test is also known as an RBT (random breath test) conducted at the roadside, which returns an inaccurate rough positive indication that you may have alcohol in your breath or blood. A positive breath test is all it takes to allow police to arrest and take you to a location where you'll be required to submit to a breath analysis.
Failure or refusal to submit to a breath analysis is considered a serious criminal offence with heavy penalties and disqualification period.
Refusing or failing to submit to a "breath test" is also an offence with a penalty of up to $1,100 but does not carry a disqualification period. While the courts have the discretion to impose a licence disqualification period, they normally do not impose this.
Once you're arrested and taken to submit to a breath analysis, police are then legally allowed to require you to submit to the breath analysis machine. The officer will give you directions on how to do this, and you are then legally required to submit according to clause 5 of schedule 3.
After having submitted to the breath analysis, the police officer must hand you a signed written statement specifying the results of the breath analysis. This will include the concentration of alcohol determined by the analysis to be present in your breath or blood and expressed in grams of alcohol in 210 litres of breath or 100 millilitres or blood. It must also state the date and time that the breath analysis was completed.
CAN YOU SAY NO TO A BREATH TEST?
Let's now discuss when it is Illegal to breath Test You? It is illegal for a police officer to require you to submit to a breath test or breath analysis (or to provide a sample) if any one of the following situations apply:
- you are at your home,
- if more than two hours have passed since you last drove a motor vehicle (4 hours applies to blood or urine samples),
- if it appears to the police officer that it would be dangerous to your medical condition due to your injuries at the time,
- when asked to take a sample of your blood in hospital as a result of an accident, an authorised sample taker objects on the grounds that compliance would be dangerous to your health,
- if you've been admitted to hospital for medical treatment (unless the doctor does not object on the grounds that compliance would be prejudicial to your proper care or treatment),
- you were not driving or were not attempting to put the vehicle in motion.
- you were driving/had a motor vehicle in motion/tried to put the vehicle in motion on an area not considered a "road".
A road means an area that's open to or used by the public and is developed for or has as one of its main uses, the driving or riding of motor vehicles.
A "road" also includes a road related area, such as a footpath or nature strip adjacent to a road, an area that divides a road, an area open to the public that's designed for use by cyclists or animals, an area that's not a road but open to or used by the public for driving, riding or parking vehicles or a shoulder of a road.
The above is outlined in clause 2 of schedule 3 Road Transport Act 2013 (NSW)
What Happens if Police Illegally Breath Test You?
In circumstances police do something illegal to get evidence of your alcohol reading, they will normally not be allowed to use that evidence under the law. The law that can kick out any such evidence is section 138 of the Evidence Act (NSW).
For example, if the police end up getting you to submit to a breath analysis test after illegally arresting you, the evidence of the alcohol reading from the breath analysis machine cannot generally be used against you in court. This means, that it can be thrown out of court, in which case, you will be found not guilty.
Breath Testing on Your Property or Driveway
Police are prohibited from conducting an RBT or breath analysis on you at your home. Clause 2(1)(e) of Part 2 of Schedule 3 says that it is illegal for police to do this at your home. The case of DPP v Skewes  NSWSC illustrates this situation.
In Skewes cases, Rohan Skewes was accused of an offence of low range drink driving at his home in Tamworth.
Whilst approaching the driveway of his home, a police vehicle travelling behind him at the time signalled for him to stop by flashing his lights and sounding the sirens.
Given that Mr Skewes was at his residence, he turned into his property and stopped his vehicle in the driveway.
The police officer walked over to the driveway where Mr Skewes had gotten out of his vehicle and directed that he submit to a breath test.
After conducting a police breath test, Mr Skewes blew an alcohol reading within the low range (between 0.05- 0.08).
It was later argued in court that a police officer is not allowed to request a person at their home to submit to a breath test.
In these circumstances, the defence argued that the driveway of a home is still considered to be a part of Mr Skewes place of abode (his home).
The case was taken all the way to the Supreme Court, where it was held that the police could not prove beyond reasonable doubt that a breath test was conducted outside of Mr Skewes home.
The court agreed that a driveway is considered a part of a person's home.
The Judge therefore found that the alcohol reading was unlawfully obtained and was therefore not allowed in as evidence against Mr Skewes.
The prosecution had no other evidence to offer- so the Judge dismissed the case and ordered that the prosecution pay Mr Skewes' legal costs.
Police are not allowed to breath test you anywhere on your property.
AM I REQUIRED TO GIVE A BLOOD SAMPLE?
If a blood sample from you is required, the police officer can take you with such force as may be necessary to a hospital or a prescribed place for you to be detained for the purpose of you providing a blood sample.
After being lawfully arrested and taken to submit to a breath analysis (following a positive breath test or RBT at the roadside), a police officer can lawfully require you to provide a blood sample with or without your consent in accordance with the directions of an authorised sample taker if you've been physically unable to submit to a breath analysis as directed.
The blood sample taken can then be used to conduct an analysis to find out the amount of concentration of alcohol in your blood in order to prove the drink driving offence, according to clause 5A of schedule 3.
Failure or refusal to give a blood sample under these circumstances attracts heavy penalties of up to $3,300 and/or 18 months' imprisonment for first offenders, and $5,500 and/or 2 years imprisonment for second or more offenders.
Fail or refuse to give a blood sample is a alcohol related major offence. This means the interlock device program applies, and it therefore also attracts a minimum 6 months or maximum 9 months disqualification with a 24 month minimum interlock period for first offenders.
For second or more offenders, it attracts the minimum 9 months or 12 months disqualification with a 48 month minimum interlock period.
If the alcohol interlock exemption applies then this offence attracts an automatic 3 year disqualification (or minimum 12 months) for first offenders. If this is your second or more offence, there will be an automatic 5 year disqualification (or minimum 2 years).
Can I Request Police to Take my Blood Sample?
If you've been arrested as a result of giving a positive roadside breath test (or refused/failed to give one when requested), and later failed or refused to give a breath analysis when requested, you may opt to request for a blood sample to be taken for police to use to determine the concentration of alcohol in your blood. This will then be done at your expense, according to clause 21 of Schedule 3.
However, this does not mean that you have the option to refuse the obligation of giving a breath analysis. You are still required to comply to the obligation to give a breath analysis.
Can I Apply for a Second Analysis of my Blood Sample?
After your blood sample is taken, you can apply to an authorised laboratory for a portion of the sample to be sent for another analysis to a medical practitioner or laboratory nominated by you, at your expense.
You can apply for a second analysis of your blood or urine sample within 12 months after the sample was originally taken, according to clause 22 of Schedule 3.
You can apply for a second analysis of your oral sample within 6 months after the fluid sample was taken.
Taking Blood Samples of Accident Hospital Patients
If a motorist (at least 15 years of age) attends a hospital for examination or treatment as a result of a motor vehicle accident, a medical practitioner is required to take a sample of the patient's blood for analysis as soon as practicable, according to clause 11 of schedule 3. This applies whether or not the patient consents.
The medical practitioner is only required to take the blood sample if at the time of the accident, the patient was driving a motor vehicle involved in the accident (or any of the other circumstances outlined in clause 11(4) of schedule 3).
When is a blood sample not to be taken? The medical practitioner is not required to take a blood sample of the patient's blood if a sample of the patient's blood has already been taken by another medical practitioner
WHAT'S A SOBRIETY ASSESSMENT?
If you have returned a negative breath test reading, a police officer is not lawfully allowed to require you to then submit to a breath analysis. In those circumstances, a police office can lawfully require you to submit to an assessment of your sobriety according to clause 13 of schedule 3 if:
- The police officer had a reasonable belief that you may be under the influence of a drug due to his/her observations of the way you were driving l, or by your behaviour, condition or appearance at the time or afterwards.
The assessment must be carried out by a police officer at or near the place where your underwent the breath test.
It is illegal for police to require you to provide a blood or urine sample if 4 hours have passed after your sobriety assessment.
What happens if you refuse a sobriety assessment?
If you refuse to submit to a sobriety assessment, or if after the sobriety assessment a police officer has a reasonable belief that you are under the influence of a drug, the officer can arrest you without a warrant and take you with such force as may be necessary to a hospital or a prescribed place and there detain you for the purposes of providing a blood or urine sample.
After being arrested in these circumstances, the police officer can require you to provide a sample of your blood and urine. They do not need your consent to do this. In that event, an authorised sample taker is under a duty to take the sample if the police officer informs the authorised sample taker that the sample is required for this purpose.
The sample then taken can be used to conduct an analysis to determine whether your blood or urine contains a drug.
If the authorised sample taker refuses or fails to take the sample from you, he/she will face a penalty of up to $2,200, according to clause 20 of schedule 3.
An authorised sample taker can lawfully refuse to take a sample if:
- he/she believes on reasonable grounds that the taking of the sample from you would be prejudicial to your proper care and treatment, or
- he/she believed on reasonable grounds that you are under the age of 15, or
- he/she was unable to take the sample because of your behaviour, or
- there was other reasonable cause to not take the sample, or
- where you have been involved in an accident, the authorised
- did not believe that you had attended at it been admitted into hospital in consequence of an accident involving a vehicle or horse, or
- the requirement for the authorised sample taker to take a sample of blood from you arose after the hearing expiration of 12 hours after the accident or he/she believed in reasonable grounds that the requirement arose after the expiration of that period, or
- the authorised sample taker did not know and could not with reasonable diligence have ascertained which of the 2 or more person involved in the accident involving a vehicle or horse was a person from whom you were required to take a sample of blood.
SECTION 10 DRINK DRIVING SENTENCES
You will not be disqualified from driving if you are guilty of drink driving and end up getting sentenced for it by the court under a section 10 order or a Conditional Release non-conviction order in New South Wales. This will also avoid a criminal record against your name. Here is more on section 10 drink driving sentences in NSW.
A breathalyser is an electronic device used to provide an indication as to the extent of alcohol you have in your body. This indicator then reflects the extent by which you are impaired from driving and are therefore by that extent dangerous to other road users.
A breathalyser unit can also be referred to as an alcolizer. It's accuracy is dependent on whether it has been regularly calibrated. These case be used not only by police for law enforcement, but also in workplace testing.
Breathalyser's used by Police in Australia are commonly the Lion Alcolmeter SD-400. It is fully automatic data-logging and provides portable, accurate, quick and quantitative breath analysis. These can also be used as personal or portable alcohol breathalysers.
Other types of alcohol breathalysers include the Lion Alcolmeter SD-400 Touch, which contains touch screen technology, icon-driven display or navigation pad to select a range of configurations and functional capabilities.
The Lion Alcolmeter 700 was released in 2015 is amongst the latest industrial grade breathalyser. It is the most popular breathalyser used in the medical, healthcare or workplace health and safety industries and workplaces in Australia.
Other popular police grade breathalysers include the Drager. These are well known for their reliability and accuracy. Types of Drager breathalysers differ in accuracy and cost. The Drager Alcotest 4000 breathalyser costs about $335, whereas the Drager Alcotest 6820 Breathalyser Alcohol Screening Device costs about $1,199.
These breath testing devices are certified to the Australian Standards.
find out more information on alcohol interlock in Australia.