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Insights

The coronavirus has caused the world to change significantly. In the world of criminal law, we have already seen courts being shut down, hearings run by video or telephone conferencing, and all non-essential persons refused entry to court precincts.

In addition, there have been rumours that police will no longer conduct random breath testing (RBT). I use the word ‘rumours’, as at this stage I have seen no official direction in relation to it.

The justification seems to be in relation to the occupational health and safety issue faced by police officers, in using the handheld breathalysing machines which require saliva and/or close proximity breath samples. Similarly, when using a drug testing kit, a sample of saliva is also required. By stopping this testing, it would reduce the exposure our police officers face on a day to day operational basis.

It should be noted that, even if these rumours are correct, our understanding is that this measure will only relate to targeted RBT sites – where the police set up on a road, close a lane of traffic and direct cars into the lane for testing. A decision to suspend carrying out target RBT sites makes sense, as officers are exposed to sometimes hundreds of driver’s saliva, which greatly increases their risk of infection.

However, at the time of writing, there has been no indication police will not still be able and willing to exercise their discretion in relation to conducting a breath test in accordance with Schedule 3 of the Road Transport Act. This means any police car can still pull over a driver at any time for the purpose of a random breath or drug test.

It should also be noted that police conduct mandatory testing after certain accident – and a blood sample is taken at hospital if a breath sample was unable to be obtained. It seems likely that this will also continue.

We remind people that penalties for driving offences increase significantly where alcohol is considered a factor in an accident and the courts treat these offences very seriously. In recent times, we have seen defendants causing road fatalities while under the influence receive full time custodial sentences, despite having no other criminal record.

In light of this, we strongly advise people to adhere to the 0.05 limit (or zero alcohol limit for P plate drivers) as the penalties are significant. Based on the information currently available the police can, and will, continue to subject people to testing.