Area of Law – Driving – Drink Driving Offences

An Article about Drink driving offence and whether informant must explain consequences of refusing a preliminary breath test

Is a police officer required to explain to a person the consequences of not providing a preliminary breath test. Does failure to explain the consequences render a charge under s. 49(1)(c) invalid?

The effect of the decision of DPP v Vaa [2004] VSC 444 is that it is not a requirement under the Road Safety Act 1986 to inform a person of the consequence of refusing a preliminary breath test. The case concerned an appeal on a question of law from a Magistrates Court decision in favour of the defendant.

The defendant, a bus driver, for whom english was not his first language, was standing outside his bus, when he was approached by police to provide a breath sample. The police alleged he had made a gesture towards them, which caused them to pull up beside him. He was asked to provide a breath sample which he refused. He argued that he was not informed of the consequences of refusing a sample, and he only became aware of the relevant penalties after speaking to another person some time after the incident. The defendant was dismissed of the offence under s. 49(1)(c) in the Magistrates’ Court, on the basis that the defendant had not been informed of the serious consequences of refusing to provide a sample.

The DPP appealed this decision on a question of law to the Supreme Court. The Supreme Court noted that a police officer does have certain obligations when making a question, Williams J used the following passage from the case of Sanzaro v County Court of Victoria to explain the requirements:

“In Sanzaro v County Court of Victoria when describing the necessary “requirement” under s 49(1)(e):”… it is not necessary to use a particular form of words in order to constitute a valid requirement … . As the judge rightly said, the test is whether the evidence as it stood was such as to prove that the plaintiff was given reasonably sufficient information to know what was required of him and why. (Rankin v O’Brien [1986] VR 67 at 73 per Southwell J) Consequently, a requirement need not take the form of a demand in imperative terms. A request in precatory or polite terms by a person clothed with apparent authority will ordinarily be sufficient. (DPP v Foster [1999] VSCA 73; [1999] 2 VR 643. And indeed it is to be hoped, and in most cases may be expected, that a requirement will be made in terms of the polite request cf. (DPP v Blyth (1992) 16 MVR 159 at 161.37) In any event, whatever terms may or may not be used in any given case, it will be enough that the intent of the police officer and the obligation of the person required to comply have been made clear. (DPP v Foster, ibid at [73]).”

The Court ruled that it was not an element to a charge under s. 49(1)(c) for the prosecution to prove the defendant was aware of the consequences of refusal. The case was remitted back to the Magistrates Court for determination.


Date: 01/09/2009