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Your
Legal Rights and Obligations.
The Victorian Motor Traffic Law
FAQ.
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"Lawyers
working with police and the
community in educating
drivers" - Deputy
Commissioner Ray
Shuey
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Driving
a motor vehicle on a
highway:
- A
highway is legally defined
as any place where the public may
legally drive or park a motor
vehicle, and it also includes all
road reserves, nature strips,
footpaths, cycle paths
etc.
- You
must stop your vehicle if
requested to do so by a police
member, and you must obey any
lawful direction given to you by
a police member.
- You
must state your name and address
when requested by a police
member.
- You
must produce your driver's
licence on request (if you do not
have it on you, you have seven
days to produce your full drivers
licence to a police
station)
- You
must be licenced to drive a motor
vehicle on a highway. Penalty: a
possible prison sentence if
driving whilst disqualified or
suspended.
- The
vast majority of traffic offences
apply specifically to driving on
a "highway".
Driving
a motor vehicle on land which is not
a highway (e.g. private property not
open to the public).
- All
of the usual drink
driving
laws apply to driving on private
property.
- All
of the motor
vehicle
accident
laws
apply to accidents on private
property.
- The
majority of driving laws do not
apply on private property (e.g.
seatbelts, speeding).
- You
are not obliged to state your
name and address upon request
unless you are found driving on a
"highway".
- You
are not obliged to produce a
drivers licence (or be licenced)
unless you are found driving on a
"highway".
- A
private road or driveway on a
farm might still be a highway if
it is open to the public for
driving.
- The
offence of 'driving in a manner
dangerous to the public' can be
committed anywhere. Careless
driving can be committed on a
highway only.
- Drink
driving offences can be committed
anywhere within the State, even
in your locked garage.
Vehicle
Searches and
Inspections:
- Under
the Road Safety Act, if your
vehicle is used on a highway you
must allow a police member to
inspect your vehicle if the
member has reasonable grounds to
suspect that the vehicle does not
comply with legislation, and if
there are no such grounds there
is a power to stop and inspect
under the Transport Act. The
police may inspect the vehicle
and engine identification numbers
if they have reasonable cause to
do so.
- The
police do not have a general
power to search you or your
vehicle, but under the Transport
Act they have power to stop and
inspect any motor vehicle,
trailer and its load without
reason to ensure compliance with
the law (e.g.
roadworthiness).
- If
the police have reason to suspect
you are carrying a radar
detector, they may inspect your
vehicle to look for and
confiscate it. (Penalty for
carrying one is $2,000.00
max.)
- The
police do not have a power to
search you or your vehicle merely
to see if you are carrying
anything irregular.
- The
police can enter your motor
vehicle by force in order to
arrest you (with cause) or
request a breath test or ask you
for your licence.
- See
also Home
searches
Breath
tests:
- You
must stop your vehicle at a
breath test queue if directed to
do so (penalty is 2 years licence
cancellation).
- You
must provide a sample of breath
in the preliminary breath test
device when requested (or face
more than 2 years licence
loss).
- Any
sample of breath provided must be
provided in the manner requested
by the police member or else the
police member can require the
driver to undergo a full
evidentiary breath test (or
possibly the police officer may
charge you with refusing a
preliminary breath
test).
- A
preliminary breath test is done
on a small handheld device with a
digital display.
- The
police do not tell you the result
of the preliminary breath test.
It is an indicator test
only.
- If
the result of a preliminary
breath test shows alcohol is
present, the police member may
require you to attend the booze
bus (or other place) for a full
evidentiary breath test (penalty
for refusing is 2 years minimum
licence loss)
- Legislation
requires the police to wait a
period of 15 minutes prior to
requesting an evidentiary breath
test. (This is to ensure that all
alcohol in your mouth has
evaporated).
- During
this waiting period the police
will ask you a lot of questions
from a pro-forma sheet and if you
choose to respond your responses
will be written down.
- A
driver is under no obligation to
answer any of those questions
other than to state his name and
address. The questions are
designed to assist the police to
prosecute the driver. Answering
any questions at all is likely to
adversely affect the driver's
chances of defending any charges
that result from the
test.
- Being
cooperative with the police is
always a virtue, but there is
absolutely nothing in the world
that a driver can say to the
police at this stage that will
cause the police not to require a
breath test, and nothing a driver
can say will dissuade the police
from charging him/her with an
offence if the breath test result
indicates he/she are in excess of
the prescribed limit.
- By
now, your situation is about as
bad as it can get. Remaining
silent can not make it worse.
Talking will not improve things.
See Right
to Silence.
- The
police will not "read you your
rights" before asking you to
undergo a breath test or before
subjecting a driver to a
pre-breath-test
interrogation.
- After
a driver has undergone a
pre-breath test interview and
made all the self-incriminating
admissions necessary to prove an
offence, the police member will
inform the driver of his blood
alcohol reading. Only then will
the police member inform the
driver that he/she is under no
obligation to say or do
anything.
- For
all indictable offences the
police must tape-record
interviews with defendants. For
motor traffic offences, there is
no obligation to tape-record any
conversation or interview and
consequently every word a driver
says will be used against him in
court without any tape-recording
to verify the
conversation.
- Police
are trained to make notes of
everything that happens. Drivers
rarely make notes of what
happens.
- The
police can ask you to remain with
them to undergo the breath test
for up to 3 hours after driving
the motor vehicle.
- The
police can require you to provide
samples of breath on more than
one occasion if the first test
did not produce any
reading.
- The
police can take away your licence
on the spot if your reading is
0.15% or more, or it is a second
drink driving offence or you are
charged with refusing a police
requirement.
- After
you have completed a breath test
you have a right to ask for a
blood
test.
- It
is not an offence to be asleep at
the wheel of your car while you
are over the legal limit , even
if the engine is running.
However, it is an offence to
start the motor of a motor
vehicle while you are over the
legal limit. If you are awoken by
the police when sleeping in your
vehicle, you do not have to
submit to a breath test
(unless you are then
attempting to start or drive the
vehicle, or you have been a
driver when involved in an
accident in the preceding 3
hours), and you are not obliged
to accompany the police to any
place. The police will usually
ask what time you were last
driving the car, as this
information is requried to
prosecute a drink driving
offence. The police can not
prosecute a drink driving offence
unless they know when the driver
last drove the car.
- The
offence of drink driving is
committed by a person who is over
the limit and has an intention to
start or drive a motor vehicle,
even if the person did not even
start the engine.
- The
police have 12 months from the
date of a motor traffic offence
to file a charge (or issue an
infringement notice) in respect
of it.
- Generally,
post-driving consumption of
alcohol is not a defence and will
not assist you to reduce the
reading on a breath test. An
exception is if you can prove
that the reading is due solely to
alcohol you consumed after you
drove the car and your evidence
of alcohol consumption is
corroborated by another person.
In practice that means you and a
witness have to prove that you
did not consume any alcohol prior
to driving (i.e. you were 100%
sober) and that you consumed
alcohol after driving which
explains with the
reading.
- The
mandatory licence
disqualification period (in
months) for a first drink driving
offence is generally equal to the
reading divided by 0.01. i.e.
0.16% = 16 months. For second
offences it is at least
double.
- If
you are found guilty of drink
driving with a reading in excess
of 0.069%, you must lose
your licence. The court has no
other options. There are no
"drive for work" licences. The
only way to avoid licence loss is
to fight and win (or never drink
and drive!)
- The
police can confiscate your car
keys if they believe you are not
fit to drive.
Blood
tests
- After
a driver has received the result
of a breath test, he or she can
request a blood
test
and the police member must
arrange for the taking of a
sample of blood in his presence
by a medical practitioner or
nurse. The driver is required the
pay any expense charged by the
doctor or nurse. It is not
expensive to have a sample of
blood taken by a doctor. The
police member nominates the
medical practitioner and the
police are entitled to keep a
sample of your blood for their
own analysis.
- Most
people who ask for blood tests
find that the blood test results
do not assist them. It is not
possible to say whether a driver
should or should not ask for a
blood test. It is up to the
driver to determine whether s/he
requires verification of the
breath test.
- Unless
you get a blood test you will not
be able to prove that the breath
test result is
incorrect.
- Because
a blood test result can confirm a
breath test reading, getting a
blood test can sometimes provide
more assistance to the
prosecution than the
defence.
- A
person taken to hospital as a
result of a car accident must
allow a doctor to take a sample
of blood for analysis. (Penalty
for refusing: 2 years minimum
licence loss).
- The
result of any blood analysis test
can be used against you in court
either on a drink drive offence
or a driving while drug impaired
offence.
- If
a driver catches a taxi to visit
a doctor immediately after taking
a breath test and asks the doctor
to take a blood test, the blood
test result is confidential and
should not be given to the police
(even though they often are!),
and the test result should not be
used in court without the
driver's consent.
- If
you are incapable of providing an
adequate sample of breath for
analysis, the police can require
you to allow a doctor or nurse to
take from you a sample of blood
for analysis (penalty for
refusing is 2 years licence
loss).
- The
result of a blood test taken
following a car accident can not
be used in civil proceedings
(insurance claims
etc).
- Alcohol
concentrations can rise in the
blood of deceased persons.
Drug
- Driving: Driving while drug
impaired
- If
a police member reasonably
suspects a driver to be affected
by a drug other than alcohol, the
police member can require the
driver to undergo a
drug
impairment
assessment.
- When
undergoing a drug impairment
assessment, you do not have to
answer any questions asked of you
by the police (other than to
state your name and address if
the driving took place in a
public place). Your right to
silence is not taken away during
the drug impairment
assessment.
- It
is currently an offence to drive
a motor vehicle anywhere in
Victoria while the driver is
impaired by any drug (s.49(1)(ba)
RSA). The Act does not limit the
definition of impairment and
currently the offence is
committed by any person who
drives while his normal physical
or mental faculties are affected
by any substance other than
alcohol. This applies to any
person found driving after taking
a panadol or other "over the
counter" drug, as well as all
prescription drugs and illegal
drugs. The Act has no definition
of 'impaired' or
'impairment'.
- The
intended effect of the new drug
drive legislation appears to be
to make it an offence to drive a
motor vehicle while the driver's
ability to have proper control of
the vehicle is affected by any
drug other than
alcohol.
- The
offence of 'driving or being in
charge of a motor vehicle while
under the influence of any drug
to such an extent as to be
incapable of having proper
control of a motor vehicle'
remains an alternative to the new
drug-drive
provisions.
- Police
have the power to require drivers
to undergo roadside saliva tests
to detect certain illegal drugs,
particularly marijuana and
amphetamines. It is an offence
for a driver to refuse to undergo
such a test.
Motor
vehicle accidents:
- If
you are involved in a motor
vehicle accident (even if no-one
is injured!) you must stop your
vehicle and render
assistance.
- You
must give your name and address
and registration number to other
drivers involveed in the
accident, to any person injured,
the owner of any property
damaged, and any police member
present.
- If
the owner of any damaged property
is not present, the damage must
be reported to the nearest police
station. The penalty for failing
to report an accident involving
property damage is maximum
$500.00 fine, or up to 14 days
imprisonment. The court has a
discretion with respect to
imposing a licence suspension
period.
- If
you damage another motor vehicle
in a parking incident and the
owner/driver of the other vehicle
is not present, you are obliged
to report the damage to the
nearest police
station.
- If
police investigate an accident
they always breath test (or blood
test) the drivers, and may also
test ocupants of accident damaged
vehicles.
- You
must not leave the scene of an
accident until you have given
your name, address and
registration number to the driver
of any other vehicles, or the
owner of any property which has
been damaged.
- If
there is no personal injury or
third party property damage,
there is no requirement to report
the accident to the police. The
police are usually not interested
in investigating an accident
unless the accident results in
injury, or significant driving
offences have been
committed.
- You
are obliged to undergo a breath
test upon request if a police
member reasonably believes you
were the driver of a motor
vehicle during the previous 3
hours when the vehicle was
involved in an accident.
(refusing will result in at least
2 years licence loss). If more
than 3 hours has passed from the
time of driving, there is no
obligation to undergo any breath
test.
- If
the police find an accident
damaged vehicle on a road, they
may try to locate the driver (for
the purpose of a breath test or
to prosecute for careless
driving). The police will often
find the driver in the vicinity
of the motor vehicle, at the
registered address of the motor
vehicle, or at the driver's
home.
- It
is not uncommon to hear about
drivers consuming alcohol after
an accident. Sometimes this is a
result of stress and shock.
Drinking after an accident will
not exempt you from having to
take a breath/blood test. That
obligation remains for 3 hours
after driving. Sometimes drinking
during that 3 hour period will
make things worse, because it
will increase your reading.
Usually it is impossible for a
court to reduce your reading even
if you prove (with witnesses)
post-accident consumption of
alcohol.
- In
order to prosecute a person for
drink driving following an
accident, the police need
evidence (such as a witness or a
confession) to prove the time
when the accident
happened.
- In
a single vehicle accident, the
police usually rely on admissions
made by the driver to determine
the time of accident and the
identity of the driver of the
damaged vehicle.
- If
a driver involved in a motor
vehicle accident which results in
personal injury or damage to the
property of an absent owner
delays in reporting the accident
to a police station, he could be
charged with failing to report
the accident as soon as
practicable.
- A
driver who is found guilty of a
drink driving offence is usually
unable to rely on his insurance
policy to cover any property
damage arising from any accident
at the time of the offence.
Likewise if an owner lends his
car to a person who subsequently
drink-drives and has an
accident.
- If
you are in a car accident and the
other driver is prosecuted for
drink driving, you will find that
the driver's insurance will be
void if he is found guilty, so
you may have trouble recovering
the cost of repairs to your car.
You may have to commence civil
proceedings against the uninsured
driver to recover the cost of
repairs.
Some
Examples
- Suppose
you drink one light beer stubby
at the office before you drive
home, apparantly without
incident. You then drink 5 cans
of full strength beer in the 2
hours after getting home. The
police then knock on your door
and you answer it. They are
investigating an allegation that
your vehicle was involved in an
accident 2 hours ago. The police
could then require you to undergo
a preliminary breath test. It is
very likely that you will commit
an offence if you refuse, and
because of the beers you just
drank, you will commit an offence
if you obey. If your reading is
over the limit, you will lose
your licence for at least 12
months in the event that your
blood alcohol content reading is
over 0.12% (which it most
probably will be). It doesn't
matter that your wife can swear
that you drank 5 cans of beer in
the past 2 hours. This applies
even if this is your first
offence in 40 years of driving.
Even if you prove to the court,
and the Magistrate accepts as the
fact, that you had a BAC of only
0.01% when you drove home, it is
no defence. This is because the
offence is committed at the time
you provide the sample of breath,
not when you drove the car (i.e
you are not guilty of drunk
driving, but drunk
blowing!).
- If
within the next 10 years you are
again found guilty of drink
driving (or drink blowing) with a
reading of 0.05%, you will lose
your licence for a mandatory
period of at least 12 months for
this second offence.
- Suppose
the police find your car parked
irregularly, and the front bumper
of the car is hard up against a
broken planter box in a hotel car
park. You parked it there at 9.30
PM. At 11.00 PM you take a taxi
home after you have been drinking
at the hotel. At midnight you
answer a knock at the door. The
police ask you if you parked your
car at the hotel that evening.
They ask you what time you parked
it there. Being an obedient
citizen, you tell them. They
smell liquour on your breath and
suspect you have been drinking.
They ask you to take a
preliminary breath test. You
object but they tell you that you
are obliged to do the test, as it
has been less than 3 hours since
you drove the car, and it has
allegedly been involved in an
accident with a planter box. They
then ask you to come to the city
police station for a breath test.
You say you have not driven the
car since you started drinking
that night. They say it doesn't
matter. If you refuse to
accompany you will commit an
offence and lose your licence for
two years. If you go with them
you know you will commit an
offence of blowing in excess of
0.05%. You are not able to
produce any witnesses to prove
that you had nothing to drink
prior to driving the car to the
hotel. Because of the alleged
"accident", you will be convicted
for exceeding 0.05%, unless you
can prove you did not have an
"accident", or unless your lawyer
challenges the police case on a
technical basis.
- Suppose
the driver above was found by the
police asleep in his car and was
awoken by the police at midnight.
The same consequences would
apply, even though he clearly was
not driving or 'in charge' of the
car when found by the police,
provided the police obtain
information of the time the
planter box was hit and that he
was the driver at that
time.
- Suppose
the driver above had dinner but
no alcohol at the hotel (because
he is on a zero limit). He parks
his car as described above, then
later drives home. At 11.30 PM he
has a couple of full strength
beers on his own at home. At
midnight he answers the door as
described above. The police
allege his car was involved in an
accident with a planter box at
the hotel that evening. He makes
full admissions of driving and
parking his car & carelessly
bumping the planter box. The law
says he will be convicted of
drink driving even though all of
his consumption occured since
driving. This is because he is
unable to produce any witness to
corroborate that his reading is
solely a result of what he drank
at home after driving his car.
The law says his reading is
assumed to have existed at the
time he drove, even though he can
produce witnesses to say that at
the hotel he drank no alcohol.
The fact that he drove alone
leaves open the possibility that
he consumed alcohol in the car,
and because of the corroboration
rule, he can't prove that he
didn't.
- If
the driver in the previous
example had witnesses who can
testify as to what he was doing
every moment of that day, and
what he drank, then he may have a
defence to the charge on the
facts.
- In
the same way that technicalities
are used to prosecute and
sentence drivers who may not have
been drunk at the time of
driving, so too can drivers rely
on technical matters to defend
charges successfully and avoid
draconian mandatory
sentences.
Personal
injuries in an accident:
- The
rules above applicable to
accidents involving
property
damage
also apply to accidents involving
personal injuries.
- If
any person is injured the driver
must report in person details of
the accident to the nearest
police station as soon as
practical (this applies even if
you are the only person
injured).
- A
person taken to a hospital as a
result of a motor vehicle
accident must allow a doctor to
take a sample of his blood. This
applies even if three hours has
elapsed from the time of the
accident. Penalty for refusing is
2 years licence loss and up to
$1,200.00 fine.
- A
sample of blood can be used to
prove a drink driving or drug
driving offence, and the method
of proof is much easier for the
police when the sample is taken
within 3 hours of the
accident.
- The
maximum penalty for failing to
report an accident involving
personal injury or death is a
fine of up to $2,000.00 or
imprisonment for up to 4 months,
and in the case of a serious
personal injury or death only,
the driver will (upon conviction
only) suffer a licence
cancellation for a minimum of 2
years. You may need legal advice
to determine what sort of injury
comes within the definition of
serious injury. In the unlikely
event that a fine without
conviction is imposed, a lesser
cancellation period can be
ordered.
Right
to Silence
- Whenever
you are spoken to by the police
you have a right to remain silent
save for situations where
parliament has passed laws that
oblige you to give
information.
- A
driver of a motor vehicle on a
highway is required to state
his/her name and address,
otherwise he/she may remain
silent.
- A
registered owner of a motor
vehicle must give information
known to him which may identify
the driver of the motor vehicle
at any particular time (penalty 2
years licence loss).
- Answering
police questions usually helps
the police to prove an offence
has been committed.
- If
you are asked for your reason for
committing any offence, stating a
reason can be interpreted as an
implicit confession to having
committed the offence, but is
rarely accepted as exculpation
for it: e.g. "Why were you
traveling in excess of the speed
limit?' - "Because I was late
picking the kids up from school"
can be taken as an admission to
speeding but is not a reasonable
excuse for it.
- When
the police ask you for your
reason for committing an alleged
offence it is in your interests
and within your rights to remain
silent or to deny committing any
alleged offence rather than offer
any explanation for your
actions.
- Usually
the police won't exercise their
discretion to "let you off with a
warning" unless you have an
extraordinarily meritorious and
believable excuse, or your denial
causes sufficient doubt to linger
in the police member's
mind.
- If
you are required to undergo a
full breath test, the police will
ask you lots of questions. The
answers to these questions
generally help the police prove
their case and often prevent you
from raising defences that might
otherwise have existed. Answering
questions greatly increases the
likelihood that the police will
charge you with an offence.
Everything you say will be
recalled and used against you in
court. The police will use your
answers to prove essential facts
such as who was the driver, time
of driving, time of accident and
time of drinking etc.
- Answering
police questions is generally not
in your interests and is often
very damaging to your defence. It
is easier to defend charges if a
driver has told the police
nothing more than his name and
address. Every word a driver
utters is usually 'another nail
in his coffin'.
- If
you think there is something
important the police should know,
your lawyer should be able to
communicate it to the police on
your behalf.
- If,
despite the above, you decide it
is best to answer police
questions, you can insist upon
the conversation being tape
recorded. There are tape
recording facilities at every
police station and you have the
right to insist that they be used
before you answer any questions.
(Make sure the tape is in and the
record button is pushed before
you start the interview). This is
usually the only way you can
verify the conversation
afterwards, especially as it will
be alleged in court that your
memory was affected by alcohol or
drug. Police procedure guidelines
require tape recording facilities
be used when conducting
interviews where such facilities
exist. Despite this, it is
extremely rare for tape
recordings to be made of traffic
offence interviews.
- A
significant percentage of cases
in the Magistrates Court involve
people who believed they had
'nothing to hide' and who
voluntarily attend police
interviews only subsequently to
regret having done so when they
discover that the result of the
interview is that the police
nevertheless lay charges against
them. It gets even worse when the
defendant's lawyer advises the
defendant that had they chosen to
remain silent and not to attend
the police interview the police
would have had insufficient
evidence to prosecute the charge.
This probably happens daily.
Although a defendant who is
co-operative will usually have
that taken into account in
mitigation and in reduction of
penalty, this is impossible in
drink dirving cases because there
is mandatory
sentencing
for all drink driving offences.
The court has no discretion and a
co-operative driver will commonly
get the same penalty as an
uncooperative driver. Mandatory
sentencing removes the incentive
to answer police questions, and
increases the incentive to defend
drink driving
charges.
- If
Magistrates had normal full
sentencing discretions, many more
lawyers would advise drink
drivers to make full admissions,
be co-operative, demonstrate
remorse, plead guilty and try to
avoid or reduce licence
loss.
If
you are questioned by the
police:
- You
have to state your name and
address if the police reasonably
suspect you have committed an
indictable or summary offence and
the police member tells you what
that offence is, or the police
member reasonably believes you
are able to assist in the
investigation of an indictable
offence.
- You
do not have to go with the police
unless you are arrested (in which
case you usually have no
choice)
- Generally,
you do not have to produce any
identification (but if you are
arrested you will get bailed
quicker if you do)
- If
the police request you to attend
at the police station to assist
them with their investigations,
you do not have to go. If you go
you do not have to answer any
questions and you can leave at
any time provided you are not
under arrest. You can have a
lawyer accompany and advise you.
See also Right
to Silence.
- If
you are the registered owner of a
vehicle, you must not refuse to
give police information that may
lead to the identification of the
driver of your vehicle on any
occasion. (Penalty: at least 2
years licence loss and up to 4
months prison).
- You
are never obliged to say or do
anything unless the law imposes a
penalty upon you for failing to
do so.
- The
police do not have power to
search you (unless they have
reason to believe you have
possession of an illegal
substance or thing).
- If
the police try to search or
detain you unlawfully you can use
reasonable force to resist
them.
- You
have to state your name and
address when requested by an
authorised person if you are
driving a motor vehicle on a
highway.
You are also obliged to do so
under provisions of some
legislation.
If
the police come to your
door:
- Generally,
the police have no power to enter
your home (whether it is to speak
to you, to breath test you or for
any other reason) without a
search warrant.
- You
are not obliged to answer the
door of your home if the police
(or anyone else) knocks on
it.
- You
do not have to let the police
inside (but if they have a search
warrant they will exercise their
right of entry).
- You
do not have to say anything to
the police (unless certain
legislation requires you to
provide certain information, e.g.
a registered owner of a vehicle
must disclose the identity of any
person driving the vehicle if
requested).
- You
can ask the police to leave your
property at anytime.
- If
you answer the door the police
may ask you to undergo a
breath-test and in that case you
must undergo the test else face a
charge of refusing a breath
test.
- If
your door is left open the police
might walk in without seeking an
invitation.
- The
police may ask you for permission
to look in your premises
(cupboards. boxes, sheds etc.) It
is your choice whether you let
the police search your personal
property but generally it is not
in your interests to do
so.
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