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Understanding the breathalyser law

Monday, October 1, 2012
Law Made Simple

Delaying a breath test, even for legal advice, can amount to a refusal to take the test, and can expose you to being charged with an offence. This is the possible consequence of the recent amendment to the Motor Vehicles and Road Traffic Act which permits the police to administer a breathalyser test to drivers suspected of being under the influence of alcohol.


The law applies to people who have driven or attempted to drive as well as to those who are in charge of motor vehicles. Thus, a person can be charged if he or she has car keys and the car is nearby. Similar laws have been in force in the United Kingdom since 1972.


The courts in that country have had to consider if an offence was committed where a person did not explicitly refuse to take the test but delayed until after it could have been administered and, also, whether a person could refuse to take the test unless they had received legal advice. The English courts answered both these questions by stating that the intention of the law was that the test should be taken as soon as possible, and persons should not be allowed to use delaying tactics to postpone the test.


It remains to be seen whether these questions would be decided in the same way in this country. The local laws permit a police officer to administer the test where there is reasonable cause to believe that the suspect has alcohol in his breath or in his blood above the legal limit or has committed another traffic offence.


Refusing to take the test without reasonable cause is punishable by a fine of $8,000 or three years’ imprisonment. The police may not require a suspect to undergo the test at the suspect’s home unless they believe that the suspect was involved in an accident within the previous two hours. Someone must also have been killed or injured in that accident. It is an offence for a suspect to deliberately do anything to alter the concentration of alcohol in his breath or blood.


The Act also allows the police to require a suspect to provide a blood sample. However, this is not required once the suspect has undergone a breath analysis and the results of that analysis are available. A breath analysis differs from a breath test in that the analysis is a detailed analysis of the suspect’s breath, and provides an exact measurement of the quantity of alcohol in the sample of breath provided. The breath test only provides a likely indication of the alcohol level.


The legal limit is 35 microgrammes of alcohol per 100 milligrammes of breath or 80 milligrammes of alcohol per 100 milligrammes of blood. It is difficult to say how many drinks a person must have to exceed that limit as this depends on metabolism, diet, the type of alcohol consumed, and other factors.


• This column is not legal advice. If you have a legal problem, you should consult a legal adviser.


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