Refusing to Blow in Back Seat of HWP Car

Refuse PBT, to accompany, to remain, or to provide sample.
Donohoe
Posts: 4
Joined: Tue Jun 14, 2016 4:53 pm

Refusing to Blow in Back Seat of HWP Car

Postby Donohoe » Wed Oct 07, 2020 2:34 pm

Hi all,

Despite the crude title above, there is a rather serious side to this thread. Charges have been brought against me by VicPol, for refusing to supply a sample of breath at a pop-up RBT site.

After failing/indicating on a preliminary test, I was presented with an evidentiary breath test machine located unsecured on the back seat of the HWP car. I immediately had concerns surrounding the legality of the machine being operated through the rear passenger window and attempted to communicate my concerns with Police. At no time did I refuse to supply them with a sample, instead stating that I was happy to provide a sample back at a Police station. I also asked to consult with a legal practitioner a number of times during my 'interrogation' by 4-6 Police who were all trying their hardest at trying at convincing (bullying) me into taking their word that I needed to supply a sample without a discussion on legalities or rights. They then claimed that I was "wasting time" asking important questions and that by filming the interaction I was creating an unnecessary delay in supplying a sample which they then classed as refusing, and that I would be charged for such. One officer decided to slip in a petty/childish insult before I was told I could go on my way.

From watching Australian RBT processes on past TV shows, I have always been of the (admittedly quite limited) understanding that Police have to arrest you for the purposes of an evidentiary test. Is that the case in Victoria? Or has it ever been? That leads me to my next question- was I within my rights to obtain legal advice before being compelled to supply a sample for the purposes of an evidentiary test?

I have serious doubts that Police followed proper procedure during this ordeal.

Any replies welcomed,


Donohoe

Hardy
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Re: Refusing to Blow in Back Seat of HWP Car

Postby Hardy » Wed Oct 07, 2020 4:25 pm

Sounds like you're in some trouble because you refused the requirement to provide a sample. You have no entitlement whatsoever to place pre-conditions on providing a sample of breath. You either put the straw in your mouth when told to blow or you commit an offence. There are some exceptions - like being comatose or can't speak English.

The best thing that could ever happen to you during your breath test is for the police to do it unlawfully. If they weren't complying with proper process I can't imagine why you would insist that they do it properly.

When the court papers arrive make an appointment to see me. Nothing you mention is going to help your case, but plenty of things you don't mention will.

notquiteright
Posts: 3
Joined: Sat Feb 15, 2020 9:26 pm

Re: Refusing to Blow in Back Seat of HWP Car

Postby notquiteright » Thu Oct 08, 2020 4:30 pm

So you were happy to provide a sample at the police station, but not at the scene when they requested it with the breathalyser in front of you. To the layperson (me) it sounds like you refused to provide a sample. If you need your licence see hardy, because the police have to follow correct procedure with this and its up to them to prove they followed the procedures according to law. The good thing is that they have body cameras and in car video so this should avoid the problem of of the parties telling porkies.


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