Area of Law – Driving – Drink Driving Offences

An Article about Basis for requesting preliminary breath test. Reasonable belief as to matters relevant to request

A police officer can request a breath test whilst executing their duties pursuant to the establishment of a preliminary breath testing station. But if a police officer requests a breath sample from a motorist other than at a pbt station, what is the basis for that request? These issues were canvassed in the case of Mitchell v DPP [2004] VSCA 36, which concerned a prosecution under s. 49(1)(e) of the Road Safety Act.

The case began in the Magistrates Court, where an offence under s. 49(1)(e) was dismissed on the basis that the Magistrate could not be satisified that the prosecution had established that the informant had a reasonable belief (predicating the request for a breath sample) that the defendant had, at the time of requesting the breath sample, an intention to drive the car, or had been in charge of the motor vehicle.

The facts of the earlier hearing before the Magistrate were that the defendant had been observed by the informant standing between the door and the door sill of his car, and that the defendant had left his vehicle, kicking the keys underneath his car. The defendant was intercepted by police walking away from his car. The defendant refused to provide a sample to the police and told the Informant that he hadn’t been driving the vehicle and had left it parked at its location overnight. He refused to provide a preliminary breath test, and refused to accompany the informant to the police station for the purpose of a breath test. The informant gave evidence at the hearing that he believed the car had been used within 3 hours as the engine was still warm, and there was no dew on the car (refuting the defendant’s story that he had left the car overnight).

The defendant was unsucessful on appeal to the Supreme Court, and futher appealed to the Court of Criminal Appeal.

The defendant argued that the prosecution had to prove that at the time of the request for a breath sample, he was in charge or had driven a motor vehicle within the last 3 hours. He further argued that the reasonable belief under s. 55(2) for requesting a breath sample was confined to a belief as to whether he had blood alcohol concentration above the prescribed limit. He argued the informant had no basis for requesting the breath sample, as no evidence upon which he could form a belief that he was driving.

The Court rejected these arguments and held that the reasonable belief referred to in s. 55(2) extended to all elements of the offence. In this case, to a reasonable belief as to whether the defendant had been driving within the last 3 hours. The court also observed it was not necessary to prove a reasonable belief that the accused had a present intention to start or was in charge of the vehicle. A reasonable belief that the accused had just driven the vehicle was sufficient, providing that belief was supportable in evidence.


Date: 01/09/2009