Area of Law – Driving – Drink Driving Offences

An Article about Request to accompany and to remain for the purpose of a breath/blood test

Must a police officer explain that the requirement to accompany to a breath testing station for a breath test, includes the requirement to remain at that place until breath sample taken?

What are the informant’s obligation when explaining the requirement to accompany, what words if any must be used?

In Sanzaro v County Court of Victoria [2004] VSC 48, driver of had been charged with an offence under s. 49(1)(e), refusing to accompany. The issue before the Supreme Court was whether the informant was required to spell out the requirements that the defendant accompany and then remain at the breat-testing station for the purpose of the breath test. The facts before the County Court (where the contested hearing took place) were that the defendant had been intercepted by the informant, a preliminary breath test was administered which indicated alcohol in the defendant’s breath. He was then asked to accompany the police officer to a booze bus pursuant to s. 55, the defendant agreed. The defendant attended wtih the informant to the booze bus, and initially waited outside. There was a 10-15 minute delay in organising the equipment necessary to take the breath-test. When the informant was ready to proceed, he returned to where the defendant was standing. The defendant had already left.

At the hearing before the County Court judge, counsel for the defendant submitted the defendant had no case to answer as the prosecution had not established as an element to the offence, the requirement to remain at the booze bus. The defendant had given evidence during the hearing, that he was not aware of his obligation to remain at the breath-testing station until the breath test was conducted.

The Supreme Court held (following Rankin v. O’Brien and DPP v. Blyth) held that there was no precise formula required in making a request under s. 55: “It is enough to dispose of the plaintiff’s final contention to repeat that the test of whether the prosecution has proved a requirement is whether the accused was given reasonably sufficient information to know what was required of him and why”.

“For the reasons more than once already given, such may be achieved in a number of ways, by terms formal or informal, imperative or precatory, and officious or polite. Whether there has been a refusal to comply with the requirement may also be proved in a number of ways: either by direct evidence, as, for example, when a defendant has said ” I refuse” or “No”; or by inference drawn from circumstantial evidence, as, for example, when a defendant has turned and run or even later left the scene. Each case will depend on its own circumstances and it must be remembered that a failure to comply must always be shown to be such that implicitly the driver is refusing to comply with the relevant requirement. But it is plainly not the case that the only way in which that can be established is by direct refusal”.

The Court held that the defendant in all the circumstances, ought to have been aware of the implication of having to remain until a breath test was provided, after the informant informed him of the requirement to attend the breath-testing station.


Date: 01/09/2009