Area of Law – Driving – Drink Driving Offences

An Article about Refusal to remain – what must the Police tell you

An informant requests a motorist to attend a breath-testing venue for a breath sample/blood sample but does not specify how long they are to remain at the station

See recent case of Uren v Neale [2009] VSC 267. In that case the accused, was charged with offences under s. 49(1)(e): refusing to undergo breath test; refusing to allow blood sample to be taken, refusal to remain at Frankston Police Station for the purpose of taking a blood test. He provided a pbt and that resulted in a request to accompany to the Frankston Police Station for a breath sample (pursuant to s. 55 of the RSA). He arrived at the station, and it seems that by his conduct, he was attempting to minimize the blood alcohol concentration reading provided by the instrument. After two tests, it became apparent that the instrument could not provide a reliable reading. The Informant under cross-examination said she said the following to the accused: “It appears that you are unable or unwilling to provide a sample of breath. I now require you to allow a medical practitioner to take a sample of your blood for analysis pursuant to s. 55(9A) of the Road Safety Act 1986. Will you remain for the purpose of providing a sample of your blood’. He said ‘No, do I have to?’. I said, ‘In the circumstances I require you to remain here for your blood to be taken. If you choose to leave and refuse, you will be charged with that offence and if convicted, you will lose your licence for two years. Will you remain?. He said, ‘No’ and I served the two records of the breath samples on the defendant and I said, ‘You will receive a summons to go to court’. On the requirements of section 55(9A), Forrest J remarked as follows: “There was no issue that Ms Neale had not told Mr Uren that there were two elements to the requirement to remain at the police station stipulated by s. 55(9A), namely: (a) three hours after the relevant driving; or (b) the arrival of the medical practitioner, or health professional, whichever was the sooner. It was not suggested in argument how Mr Uren might have acquired knowledge of these obligations absent being told by Ms Neale”…I accept that the words used by Ms Neale did not make it as clear as one might have wished, that there were two separate and distinct requirements being made of Mr Uren, each of which may found a charge in the event of refusal. This was particularly so when Ms Neale only referred to the refusal to remain at the police station as founding a potential charge. Having said that, the question is whether the requirement so each charge were made sufficiently clear, in conformity with the law, to Mr Uren so that he could know what was required of him and why”… “I now turn to charge four, the remain at the police station charge, and whether the words used by Ms Neale made it clear as to the obligation of Mr Uren of the terms of the requirement to remain at the police station. IN my view they did not. A common thread in the decisions in both Foster and Sanzaro was that in this day and age most members of the community understand the working of the breath analysis ststem and are aware of the manner in which breath tests are conducted, either int eh form of a preliminary breath test or at what is described as an “evidentiary” breath test. As I have said, I think most members of the community are also aware of the further potential obligation to provide a blood sample whether at a hospital or police station. However I doubt very much whether anyone, unless highly familiar with the provisions of the RSA, is aware of the temporary requirements as to remaining at “a place” for the taking of a blood sample. No doubt the susnet provision of three hours as a maximum period was inserted to ensure that what would otherwise be an unlawful detention was limited to a reasonable time. This maximum duration of the statutory requirement was not conveyed to Mr Uren… “In my view the Magistrate misinterpreted s. 55(9A) in relation to charge four. It was incumbent upon the prosecution t prove at least in a basic sense that the terms of the requirement were communicated to MR Uren: critical to this is that three horus “after the driving” was the maximum period over by which he could be detained. IN relation to charge four, Ms Neale’s requirement was “not near enough” to be anywhere approximating “good enough”, as Southwell J said in Rankin. This is particularly so when one takes into account the context. The request was made at approximately 1.15am at the Frankston Police Station. When the medical practitioner might arrive, if at all, was “open-ended” to use the Magistrate’s words, whereas the section was not”… I have therefore concluded that the Magistrate was in error in convicting Mr Uren on charge four and that the conviction on that charge should be quashed.”

Note: this case also has a useful discussion on section 30 of the MCA. One of the other grounds concerned non-compliance with section 30(2a), in that, the charge and summons was not filed within 7 days after signing. On this ground Forrest J agreed with the Magistrate and held that the offence was procedural rather than creating a substantive right to have the relevant charge and summons dismissed for non-compliance. After referring to several authorities, Forrest J concluded: “I think that section 30(3) did not more than provide a mandatory stipulation in respect of the filing of process. It is directed to an administrative task – the filing of the summons. It, to use Mason CJ’s words in McKain v Miller regulates the mode of the proceeding. It did not give Mr Uren a substantive right; at best it gave him a procedural entitlement to raise the issue before the Magistrate and to seek that the matter be struck out.”

An informant requests a motorist to attend a breath-testing venue for a breath sample/blood sample but does not specify how long they are to remain at the station


Date: 01/09/2009