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Police have the power to conduct random breath tests on any driver in New South Wales. But when police shut down entire roads and test every single driver is it still really random? This weekend NSW Police are running “Operation Nabbed” once again. RBT sites have been set up at every exit along several major Sydney motorways. Their aim is to detect anyone drink driving, drug driving, or committing any other traffic offence. Any driver who enters the M2, M4 or M5 may not be able to leave the motorway without being breath tested. In February this year Police blocked every exit along a 40km stretch of the M5 motorway. 25000 drivers were tested and 84 were charged with drink driving offences.

Why it’s not random breath testing

Schedule 3 of the Road Transport Act sets out breath testing powers available to police. Interestingly, Section 3 is titled “Power to conduct random breath testing” not “Power to shut down a motorway and test every driver on it”  The Collins English dictionary defines random as something where “all the people or things involved have an equal chance of being chosen”. The only thing equal for drivers on the M2, M4 and M5 on Friday and Saturday night during Operation Nabbed is that they’ll be breath tested. There is certainly no element of chance when police trap people and force them through a checkpoint.  

It is arguable that this kind of testing is actually an abuse of power and an action designed to entrap, and charge people – rather than one designed to protect road users from drink drivers. This very question was considered in the NSW District Court in R v Buddee. In that case the Court 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. However it is arguable that the tactics used in Operation Nabbed are just as unlawful as the breath testing is not conducted on a random basis.  

There is actually almost no practical difference between Operation Nabbed and police setting up RBT sites at either end of a residential street just in case someone should leave their driveway and be over 0.049. The only reason it’s more palatable on a motorway is because there is an assumption that someone has been out, rather than at home before being detected.

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.

Why contact Astor Legal ?

If you’ve been charged with a drink or drug driving matter you should contact a lawyer who specialises in drink driving matters. The principals of Astor Legal, John Marsh and Joshua Blom have been recognised as being recommended lawyers in the field of “Traffic and DUI lawyers”. We know how to prepare your matter to ensure you get the best possible outcome at court.