Area of Law – Driving – Drink Driving Offences

An Article about Drink driving and whether Informant required to explain from the outset the requirements of s. 55 of the Road Safety Act

Is it necessary for a charge under s. 49(1)(f) that the informant tell the respondent “at the outset” that he or she is required to accompany the police to a a breath-testing station and to remain there until the sample of breath has been taken for analysis, or until or until 3 hours have elapsed from the time of driving, whichever is the sooner

See the decision of DPP v Foster; DPP v Bajram [1999] VSCA 73

The Court of Appeal observed that “It is of course, eminently desirable that a motorist should be informed, as no doubt the motorist invariably will be, after the administration of the preliminary breath test, that he or she must accompany an officer to a police station to furnish a breath sample of breath for analysis. That however, occurs in the exercise of the power invested in the officer. If the power is abused the officer will risk losing the evidence which the exercise o the power is designed to obtain.

“But it is quite another thing to suggest that an exercise of the power to require a motorist to accompany the officer to a police station is an essential element of the offence of “furnishing a sample of breath for analysis… under s. 55(1).”

The Court of Appeal ultimately held that “the failure of the respondents “at the outset” that they were “required” to remain at a police station until the sample of breath had been furnished or for 3 hours from the time of driving could not lead to the conclusion that the samples of breath furnished were not furnished under s. 55(1).


Date: 01/09/2009