Area of Law – Driving – Drink Driving Offences

An Article about Refusal to remain at breath-testing station

What amounts to a refusal to remain at a breath-testing station? The following case is an example of where the Court ruled that the defendant had not refused to remain, and thus the charge under s. 49(1)(E) was dismissed.

The Court of Appeal case of Hrysikos v Mansfield [2002] VSCA 175 confirmed that whether a person has refused to remain at a location for the purpose of breath-test turns upon the particular facts of the case.

At the hearing in the Magistrates Court, the facts were that the defendant was intercepted by police, a preliminary breath test was provided by her which indicated the presence of alcohol in her breath. She was then asked to accompany the officer for an evidentiary breath test at a mobile breath testing station. She entered the van and there was a delay in setting up the necessary equipment. She told the informant that she was leaving the van to have a cigarette. The informant told her that if she left she would be charged with refusing to remain at a breath-testing station for the purpose of a breath test pursuant to s. 49(1)(e).

The defendant walked out of the van, but remained close-by and had a cigarette. Although remaining close-by for some time after having the cigarette she was not asked again to provide a breath test. The prosecution argued that the requirement to remain at a breath-testing station or other place under s. 55(1) included the four walls of the interior of the mobile-breath testing van. The Magistrate hearing the contested hearing found that she had refused to remain, she appealled this decision to the Supreme Court and the Court observed, in upholding the appeal that:

From the time the issue of a cigarette was raised the appellant behaved in an angry manner and used colourful language to express her feelings. At no time, however, did she say she would not give a further sample (and that was not alleged) or that she wanted to leave the site. There was evidence that she briefl went inside the van to get her bag but returned outside to the same position – close to the steps of the bus.

“Otherwise, she was at all times in close proximity to the bus and the officers. Smith J after considering some authorities, DPP v Williams (1998) 28 MVR 521 – “It does not follow, however, that, in going outside the bus, she ceased to “remain there”. Those words require the person being trested to remain at the “other place”. That person, however can remain at the other place notwithstanding that that person may be outside its four walls”.

” What is critical is the question of whether the person remains linked to that place. For example, if a person were taken to a police station for the purpose of breath analysis under s. 55 and, while the equipment was bieng set up, stood immediately outside the front entrance while smoking a cigarette fully intending to return for the test and reamining under police supevision it could not be said that that person had refused to remain at the police station. What is critical is the proximity to the “other place” and the continuation of the purpose for which the person was taken there and the fact that the person has not gone to another place.”

The Director of Public Prosecutions appealled this decision to the Court of Appeal, and the Court of Appeal dismissed the appeal for the same reasons as the trial judge.

Whether a person has refused to remain is a question of fact in each case.


Date: 01/09/2009