Page 2204 - Week 08 - Tuesday, 4 June 2013
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Requiring the same magistrate to issue the warrant and hear the application may delay the process if the issuing magistrate is not available at the time of the suspect’s hearing. The amendment clarifies that a suspect must be brought before the court rather than a specific magistrate. This broadens the scope of the section and facilitates the efficient day-to-day operation of the court.
The bill also improves operational efficiencies in the administration of the Road Transport (Alcohol and Drugs) Act 1977. This bill amends sections 8, 9 and 10 of that act, which relate to the administration of roadside alcohol screening tests by a police officer. Under particular circumstances, a police officer may conduct an alcohol screening test but may not undertake more than one unless the person is taken into custody. There are a number of circumstances where a second test may be necessary. Firstly, a second test may be necessary when the initial screening test gives a result that is right on the line between an alcohol concentration that exceeds the person’s prescribed concentration and one at which it is lawful for the person to drive.
In such cases, a second test conducted a few minutes after the initial test will indicate whether the person’s alcohol concentration is rising or falling. If the concentration is falling, the person will be able to resume driving with no further delays or consequences. If it is rising, the person would ordinarily be taken into custody for breath analysis, to obtain an evidential reading of his or her breath alcohol concentration.
Waiting a few minutes and offering a second screening test is a practical alternative that avoids the need to take a person into custody for breath analysis in every case where a reading at the prescribed concentration is obtained. It recognises that taking a person into custody for breath analysis is a limitation of the person’s rights, albeit one that can be reasonably justified in the interests of ensuring safer roads. However, this limitation of rights can be reduced by offering a second roadside screening test to rule out marginal cases.
Secondly, subsequent tests are necessary where police are conducting a high-volume roadside screening exercise using screening devices operating in passive mode. These devices will indicate only the presence or absence of alcohol in the person’s breath. While these devices serve a number of practical advantages, including reducing delays and congestion for motorists, a positive reading will necessitate an active test being carried out to find out the driver’s actual alcohol concentration.
Thirdly, a second or subsequent test may be required when there has been difficulty in obtaining a breath sample at the first attempt for an active test. This could be when the tube has been dislodged or the driver has not provided one long continuous breath. Lastly, a second or subsequent test may be required where the driver has indicated to the testing officer that he or she has recently had a product containing alcohol in his or her mouth, such as where an alcoholic drink has recently been consumed or where he or she has used an alcohol-based mouth wash. Traces of alcohol in the mouth affect the reading from the breath testing equipment. However, mouth alcohol dissipates relatively quickly and a second roadside screening test conducted shortly after the first can eliminate the need to take the person into custody for a breath analysis.
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