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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" -
Former 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. seat
belts, 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 licensed) 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.
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
without your consent.
- 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
about $3,000.00 max.)
- 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 0.10% or
more, or it is a second drink
driving offence, or you are charged
with refusing a police requirement,
or the police claim you are drink
driving when under 26 years old or
on P plates.
- 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 in
the drivers seat of your car while
you are over the legal limit, even
if the keys are in the ignition.
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 required to prosecute
a drink driving offence. The police
can not prosecute a drink driving
offence unless they have evidence of
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.
- 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).
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
involved 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
occupants 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,
apparently 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
liquor 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 occurred 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 $2,500.00 or imprisonment
for up to 4 months, and in the case
of a serious personal injury or
death, 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
driving 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 discretion, 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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