Page 1372 - Week 05 - Tuesday, 13 May 2014
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The proposed government amendments confirm that the maximum time that a driver to be randomly screened can be required to remain at the place where they were pulled over is 30 minutes. The amendments also confirm this requirement only applies where the police officer has reasonable cause to suspect that the person has alcohol or drugs in their body. This 30-minute limit is proportionate, noting that it can only be exercised where there is a reasonable cause to suspect the person has alcohol or a drug in their body.
There has been no change to the existing power for a police officer to require a person to undergo an alcohol or drug screening test based on nothing more than the fact of the person being the driver of a vehicle on a road or road-related area, or the police officer having reasonable cause to suspect that the person was, shortly before the requirement to undergo the screening test, a driver on a road or road-related area. It remains the case that there is no requirement for a police officer to suspect that a driver or driver trainer is under the influence of, or otherwise affected by, alcohol and/or drugs when considering whether or not to request the driver to undergo a random screening test.
These amendments will ensure an appropriate balance between a driver’s human rights, particularly the right to liberty, and the rights of the broader community to be protected from those who flout the law. The 30-minute limit will allow a drug screening device to be sourced from the traffic operations centre in Belconnen and delivered to any part of the ACT where the driver has been directed to remain.
As the concerns expressed about the provisions in the bill have related to random screening, the government does not propose to change the provisions of the bill relating to alcohol and drug screening where the driver is suspected of being a driver or occupant of a vehicle involved in an accident or of having committed the offence of culpable driving. In these circumstances police will be able to require the driver to remain for a screening test for the time reasonably necessary to conduct the test, up to a maximum of 30 minutes.
The third amendment made by this bill is to create an offence of refusing to undertake a screening test for alcohol or drugs. Currently, if a driver refuses to undertake a roadside screening test for alcohol or drugs, the only option available to a police officer is to take the person into custody for a breath or oral fluid analysis. It is only when a driver refuses to undertake the analysis that they can be charged with the offence of refusing a breath or oral fluid analysis.
The experience of our police has been that, in practice, drivers are unlikely to agree to an analysis if they have already refused to undergo the initial screening. Some drivers refuse the screening test as a delaying tactic, in the belief that they will no longer be over the limit when the test is conducted. Some drivers readily admit that, for cultural or employment reasons, they would prefer to have the conviction for the offence of refusing a police request as opposed to having a conviction for drink or drug driving.
Having to take a driver into custody to perform a breath or oral fluid analysis causes significant operational disruption for police and consumes police resources. Taking a
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