Area of Law – Driving – Drink Driving Offences

An Article about Whether requirement to accompany for a breath sample be made on reasonable grounds

Request to accompany under s. 49(1)(e) must the request be made on reasonable grounds. Does a request to accompany police in back compartment of divisional van amount to an unreasonable request to accompany?

The case of DPP v Mastwyck [2008] VSC 192 confirms that a request under s. 49(1)(e) to accompany a police officer back to a police station must be made on reasonable grounds. The case was a DPP appeal on a question of law from the decision of the Magistrate who dismissed the charge on the grounds that as the defendant would have been required to be transported back to the station in the back of a divisional was tantamount to imprisonment.

The facts were that the defendant after providing a preliminary breath test had reluctantly agreed to accompany the police officer but once it became known she would be transported in the back of a division van she withdrew her consent.

The Court held that a requirement under s. 49(1)(e) to accompany police to a police station for the purpose of a breath test must be reasonable. However, the Court concluded that as the defendant had a choice as to whether or not to enter the police van, could communicate with the drivers through an intecom at any stage during her trip to the station, and could thereby withdraw her consent at any time, she was not imprisoned.

The Court observed that although the requirement under s. 55(1) did not include a power to imprison for the purpose of faciliating the breath test, whether a person was imprisoned was a question of fact. And on the facts of the instant case, it was determined that defendant would not have been imprisoned had she complied with the request.
The Court ruled that the Magistrate had erred in dismissing the charges. The matter was remitted back to the Magistrates Court for determination.


Date: 01/09/2009