ACT Road Transport Legislation Extends Power of Police to Test Drink-drivers
Wednesday 10 February 2016 @ 10.16 a.m. | Crime | Legal Research
Among the various other matters addressed by Road Transport Legislation Amendment Bill 2015 (No 2) (the Bill), it is reported that the Bill :
". . . close[s] a loophole that previously allowed drink-drivers to avoid being breath tested, by giving police the right to enter homes without permission in some circumstances".
The Bill is currently before the ACT Assembly, having been presented in late October 2015 (29 October 2015) and following the Road Safety Minister (the Minister's) comments, as reported by the ABC News on 9 February 2016, moving quickly through the ACT Assembly to be passed on 9 February 2016 (the Assembly's first day of sitting for 2016).
Commenting on the proposed law, the Minister is reported as saying that:
". . . the community rightly expected that people who drank excessively or used drugs before driving would be detected and removed from roads. . . . This change [proposed by the Bill] ensures that drivers who drive whilst affected by alcohol or drugs will no longer be able to avoid sanction for their dangerous and criminal behaviour by refusing to allow police officers to enter premises to undertake the necessary testing, . . .".
How the ACT Police Powers are to be Extended
With respect to "ACT police powers", the Bill removes an existing police power of entry to arrest for a drink or drug driving offence, and in lieu of that power provides the ACT police with a limited power to enter premises to require alcohol or drug screening tests, where police reasonably suspect that an individual on the premises has committed a drink or drug driving offence, and has either failed to stop when requested or signaled by police while driving on a road or road related area, or has been involved in a traffic accident on a road or road related area and left the scene of the accident. The ACT Government's stated intent being that the measure will improve road safety and ensure that drivers are appropriately sanctioned for dangerous drink and drug driving offences.
Speaking to the Bill in the ACT Assembly, the Minister indicated that the amendments made by the Bill removed from the Crimes Act an existing police power of entry to arrest for a drink or drug driving offence as that power was now redundant given that the ACT police now operated under the provisions of the road transport legislation and not the Crimes Act when dealing with drug and drink driving offences. Along with the removal of the redundant power in the Crimes Act, the road transport legislation is amended to provide police with a limited power to enter premises to require alcohol and drug screening tests where a number of specified "preconditions" are met. The preconditions being:
- The police must have a "reasonable suspicion" that a person has committed a drink or drug driving offence. For example, a police officer observing the driver driving erratically or exiting a licensed venue with a demeanour that suggests intoxication or impairment before driving a vehicle, would be a reasonable suspicion;
- The police must have a reasonable suspicion that that person was also either the driver of a vehicle that was involved in a road accident or has failed to comply with a police request to stop a vehicle the person was driving on a road or road-related area;
- The police must have an existing power under the Road Transport (Alcohol and Drugs) Act to require that person to undergo alcohol or drug screening tests; and
- The police must reasonably believe that the person is on the premises.
It should be noted that while now able to enter premises to conduct tests, once the preconditions are met, the ACT police are still subject to the existing restrictions on testing contained within the ACT Road Transport (Alcohol and Drugs) Act.
". . . When doing so, police will be subject to the existing restrictions on testing contained within that act, including the time limits relating to how long after a person stopped driving or is involved in an accident a screening test can be undertaken. For example, where there has been a road accident police cannot require a test if more than two hours have passed since the accident occurred. This means that police cannot enter premises to require a test if more than two hours have passed since the accident. In the case of a driver failing to stop when required by police, police cannot enter premises to require a screening test if more than two hours have elapsed since the person ceased to be the driver of the motor vehicle."
Important to the ambit of the new police power is the fact that police presence on the premises is limited to the length of time required to carry out the test - as Minister said in the Assembly:
"The amendment also provides that police officers who enter premises for the purpose of requiring a person to undergo a drug or alcohol screening test must not remain there for longer than is required to conduct those tests. The need for this amendment arises in the context of drivers who are involved in a road accident, leave the accident and enter and remain within a premises where they cannot be tested for drink or drug driving until the relevant evidence, that is, their blood alcohol concentration or a proscribed drug in their system, is no longer present."
Other Measures in the Bill
The other measures covered by the Bill are according to the explanatory materials:
- allowing for the electronic service of infringement notices (in addition to the personal or postal service of notices currently required by the ACT road transport legislation) and also allowing for infringement notice declarations to be completed online (in addition to the current method, which is by statutory declaration);
- creating consistency in the appeal rights of drivers who face automatic disqualification of their driver licences for drink or drug driving offences, to ensure that both those who are disqualified for the default period under the legislation and for a different period ordered by the Court are both able to appeal their disqualification – this the ACT Government says will ensure equality of treatment for these drivers;
- removing an inconsistency in how ACT, interstate and external driver licence holders who are suspended and then disqualified from holding or obtaining a driver licence are treated – another measure the ACT Government says is will to ensure the equality of treatment for these drivers; and
- providing that police advice of an existing licence suspension, where an individual has already been suspended from driving by the RTA (such as for accumulation of demerit points or non-payment of infringement notice penalties) is taken to be formal notification of that advice - this the ACT Government says will support road safety and the enforcement of the road transport legislation by ensuring that drivers who have been suspended are not able to claim they were unaware of their suspended driver licence status if they are subsequently apprehended driving while the suspension is in place.
Next Steps
As already noted, the Bill has moved quickly through the ACT Assembly which started its 2016 sittings yesterday (9 February 2016). The Bill was not amended and should be notified as an Act in due course.
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Sources:
Road Transport Legislation Amendment Bill 2015 (No 2), Explanatory Statement and 2nd Reading as reported in the TimeBase LawOne Service
ACT police given power to enter homes without permission to test suspected drink-drivers (ABC News)
