Posted By avinash, on April 15, 2024
Random breath testing NSW
Posted By Avinash Singh, on December 24, 2023
Police have broad powers when it comes to random breath testing in New South Wales. In fact, a police officer can decide to stop and breath test RBT you without any reason other than because you are or were driving a motor vehicle on a road.
Despite this, there are some exceptions where it is illegal to breath test you, such as on your property and if it has been more than 2 hours since you drive a vehicle.
What is an RBT?
‘RBT’ means ‘random breath test’. It is a test given by the police to arbitrarily chosen drivers to measure the amount of alcohol the driver has consumed.
Are random breath tests legal?
Random breath tests are legal in NSW under Clause 3, Schedule 3 of the Road Transport Act. Police are entitled to conduct random breath tests if an officer has reasonable cause to believe that:
- the person is or was driving a motor vehicle on a road, or
- occupying the driving seat of a motor vehicle on a road and attempting to put the motor vehicle in motion, or
- was supervising a learner driver.
What this means is that police only have to believe on reasonable grounds that you were driving a vehicle. They do not need any basis to believe you were actually intoxicated.
Can you refuse a breath test?
In NSW, you can refuse a breath test if you cannot provide a sample of your breath due to medical reasons. A common example of this is asthmatics who are physically unable to provide an adequate breath sample.
This will however require medical evidence such as a report from a doctor or other medical expert confirming both your diagnosis and that it prevented you from providing a sample.
Police are also not allowed to breath test you when you are on your property or if it has been more than 2 hours since you drive.
What is the penalty for refusing a breath test?
The penalty for failing or refusing a breath test is a fine of up to $1,100. There is no driver licence disqualification for failing or refusing a breath test.
Can police pull you over for a RBT?
In NSW, Police can pull you over for a random breath test by requesting or signalling for you to stop. Every police vehicle has an RBT unit and can conduct breath tests.
The penalty for not pulling over for an RBT is a fine of up to $1,100 under clause 3(4) of schedule 3 Road Transport Act 2013 (NSW). However, there is no driver licence disqualification.
Random breath testing procedure
The procedure for random breath testing in NSW is:
- Police will set up and conduct stationary random breath testing at any location where vehicles can be safely signalled or requested to stop.
- Drivers are requested or signalled to stop their vehicle so that a breath test can be administered.
- If the breath test is positive, then the driver will be taken to a police station or mobile breath analysis site where a more accurate test is administered.
- If that result is over the blood alcohol concentration (BAC) legal limit, the driver will be charged with a drink driving offence.
How does random breath testing work?
Random breath testing works by using a breathalyser to analyse the blood alcohol concentration in a person’s system.
The driver of a vehicle blows into the breathalyser. The device will then indicate if the breath of the driver contains a level of alcohol that is above the limit prescribed for driving.
You will not be convicted of drink driving if you fail this roadside test as it is not accurate enough to assess your actual reading. A further test will be conducted at the police station or mobile station using another, more accurate breath testing device.
It is important to note that if you are arrested after failing a roadside test, the police must perform a breath analysis test within two hours from the time of your arrest. If they do not, lawyers for drink driving charges can have the evidence of the test excluded when the case proceeds to court.
Can RBTs be used to investigate other crimes?
The Collins English dictionary defines random as something where “all the people or things involved have an equal chance of being chosen”. The recent NSW District Court case of R v Buddee observed that:
“The authorities and statutory interpretation all point to the proposition that the RBT powers cannot be used to justify the arbitrary stopping of vehicles, interrogating of occupants or searching of vehicles for crime detection.”
Buddee examined the use of RBT as a means to search vehicles for drugs or prohibited weapons and found that a random breath test cannot be used as a guise to investigate some other offence.
RBT Statistics
RBT statistics suggest that they may not be as effective as police and the government would like to suggest.
For example, in February this year, Police placed RBT locations on every exit along all major highways in Sydney along a 40km stretch of the M5 motorway. 25,000 drivers were tested but only 84 were charged with drink driving offences.
This means that it resulted in 0.03% of drivers who were tested being charged.
Can you request a blood test?
A person who undergoes a breath test may afterwards request for a blood sample to be taken. Clause 21 of Schedule 3 of the Road Transport Act 2013 requires police to inform you that you can request a blood sample to be taken after a breath test.
When a blood test is taken, it is divided into 3 parts, one is given to the defendant, one to the analyst and one is kept as a control. You can have your blood sample independently analysed, however this is an expensive exercise.
A blood sample can be helpful when you are close to the bottom of a range. For example, if you are assessed at 0.152 this is only slightly into the high-range PCA. A blood sample which is taken some time after the breath analysis may result in you falling into the mid-range PCA category.
How long does it take police to get blood test results?
It generally takes approximately 3 months for the police to receive blood test results from a hospital. The results will be provided to you sometime after this is you have been charged with drink driving and pleaded not guilty.
If you have already pleaded guilty or are not charged, then you will not receive the results.
Do police have to show RBT results?
Police are not required to show you the random breath test results because they are quite inaccurate. However, they are required to provide you with a breath analysis certificate if you fail the breath analysis test.
Can you drive after an RBT?
If the result of your RBT is negative for alcohol, you can keep driving.
However, if the test is positive for alcohol, you will usually receive an immediate police suspension of your licence.
Your license will not be suspended if your reading falls within the Novice, Special or Low Range PCA. That is a reading between 0.01-0.079. Any reading higher than this will result in a suspension.
If you are suspended by the Police and then drive you are committing an offence of driving whilst suspended, which carries lengthy disqualification periods.
Disputing RBT results
If you are charged with drink driving you can contest the breath test result and plead not guilty.
The most common grounds for disputing the results of a breath test are:
- If you have reason to believe that the device used for the test was faulty
- If you have reason to believe that the results of the test are incorrect
- If you have reason to believe that the test was conducted incorrectly- medical grounds were violated or the prescribed period for conducting a test had already lapsed.
What if I’m caught drink driving?
If you’re stopped by police the first step is a roadside breath test which gives an indication of your blood alcohol concentration (BAC). Most drivers have a limit of 0.05. If you’re over the limit you’ll be arrested and taken to a police station or RBT bus where a further test will deliver an accurate reading of your BAC.
Police then issue a court attendance notice or penalty notice depending on your reading. One thing is now common with all drink driving charges. Police can now immediately suspend your licence irrespective of the reading. Until new laws came into force this was only done if you were driving with a middle range PCA (0.08 to 0.149) or above. You can appeal against this decision but you must prove that there are exceptional circumstances why the appeal should be allowed.
Penalties for drink driving have also been increased. Fines can be up to $3300 and you can face terms of imprisonment, along with lengthy disqualifications. If you are charged with middle range or high range PCA a court will also impose an interlock condition on your licence for several years. This means that after you serve the period of disqualification you can only drive a vehicle with an approved interlock device fitted. The cost of running an interlock device is about $2500 a year.
