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Drink Driving and Whether Necessary to Establish a Preliminary Breath Testing Station as a Pre-requisite to an Offence Under s. 49(1)(b) and 49(1)(f)

Area of Law – Driving – Drink Driving Offences

An Article about Drink Driving and whether necessay to establish a preliminary breath testing station as a pre-requisite to an offence under s. 49(1)(b) and 49(1)(f)

The case of Maitland v Swinden [2006] concerned an appeal on a question of law to the Supreme Court. The earlier hearing was heard before a Magistrate, and the issue before the Magistrate and again on appeal, was whether a preliminary breath testing station was established for the purpose of taking a preliminary breath test. Section 54 of the Road Safety Act provides that for the purpose of taking a preliminary breath test from a person, police are to establish a preliminary breath testing station. the defendant argued that the preliminary breath test was taken at a site,which was not clearly demarcated as a preliminary breath testing station. It was further argued that as the requirement under s. 54 had not been satisifed, the test under s. 53 was invalid, because of non-compliance with section 54.

The Court held, dismissing the appeal, that whether a preliminary breath testing station was established wsa a question of fact. It was held that the Magistrate did not err in concluding a pbt station was established, and that the subsequent breath test valid. The court also held that it was not parliament’s intention that s. 54 be interpreted narrowly.

 

Date: 01/09/2009

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