Area of Law – Driving – Drink Driving Offences

An Article about Establish a PBT station as a pre-requisite to an offence under s. 49(1)(b) and 49(1)(f)

Must the police clearly designate an area for the purpose of conducting a preliminary breath test? Is it necessary for a person to be aware that they have entered an area designated as a preliminary breath-testing station?

The Supreme Court case of Maitland v Swinden [2006] VSC 467 is authority for the proposition that whether a preliminary breath testing station is established under s. 54 of the Road Safety Act for the purpose of the taking of a preliminary breath test (under s. 53 of the RSA) is a question of fact.

The facts of the case concern an appeal on a question of law from a contested hearing in the Magistrates Court. At the conclusion of the hearing, the Magistrate convicted the defendant and imposed a disqualification on his license. His argument before the Supreme Court concerned the validity of the preliminary breath test taken by police on the grounds that the location where the police had taken his sample, was not clearly demarcated as a preliminary breath testing station.

The Supreme Court rejected this argument,and held that it was open as a question of fact to find a preliminary breath testing station was established. The Court also observed that the parliament would not have intended that s. 54 of the RSA be interpreted narrowly.


Date: 01/09/2009