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Illegal use of Random Breath Tests

Are the NSW Police using illegal random breath tests for lockdown interrogation?

The illegal use of random breath tests to interrogate drivers is not something new in New South Wales. However, since the introduction of the coronavirus lockdown, there have been serious concerns about police misusing these powers.

Despite a common misconception, police in New South Wales do not have free reign to conduct policing activities as they please. Police have strictly defined limits as to what they can and cannot do.

As His Honour Justice McClintock said in the very important case of R v Buddee:

“Any action they take must be justified by law, they must be able to point to lawful authority for all actions undertaken. They must act in a bona fide exercise of a power and not for an ulterior purpose.”

As a result of the coronavirus lockdown, a significant concern has been that police are illegally stopping vehicles to interrogate the occupants about their movements under the disguise of a Random Breath Test (RBT).

Although the police suggest that these stops are for the purpose of conducting a random breath test, the clear intention in some cases has been to question the occupants of the vehicle about why they have left their homes.

This has raised the question, is it illegal for the police to use random breath test powers in this way?

The short answer is Yes, absolutely. It is an improper and illegal use of police random breath test powers.

What powers do police have to stop vehicles?

Despite a common misconceptions, police in New South Wales do not have a general power that allows them to stop vehicles for questioning or interrogation. There is also no power to stop a vehicle for a license check either.

In New South Wales, residents are fortunate enough to be protected from the undue harassment and interference of police officers acting on nothing more than a “hunch”.

The law in New South Wales defines a limited number of circumstances in which police can stop a vehicle. The circumstances that are most relevant to the coronavirus lockdown are:

  1. To conduct a random breath test.
  2. To arrest a person under Section 99 of LEPRA (as discussed in our previous blog: Police Powers During The Coronavirus Lockdown [Know your Rights]).

Outside the exempted purposes, police in New South Wales cannot stop a vehicle for the sole purpose of questioning the occupants about where they are going and what they are doing. This would amount to an illegal stop.


The limitations of the Public Health Act

To properly understand why police are disguising these stops as random breath tests, consideration must be given to the limitations of the Public Health Act.

The coronavirus lockdown Order is an Order that is made under the Public Health Act. Despite the very strict lockdown restrictions that have been imposed under the Order, the Act gives police very few powers to enforce these restrictions. Like a dog without teeth.

There is no power in the Public Health Act that allows police in New South Wales to stop vehicles and question the occupants about their movements.

The Government either by oversight or intentionally did not deem it necessary to provide police with powers to stop vehicles under the Public Health Act.

However, that has not stopped the police from stopping vehicles anyway. Instead, police have been disguising these stops as random breath tests.


What are police random breath test powers in NSW?

In New South Wales, police are given power to conduct Random Breath Tests under Division 2 of Schedule 3 of the Road Transport Act NSW 2013.

However, the power in Division 2 was given to the police for a single purpose, that is, to test for the presence of alcohol present in a person’s breath or blood.

The power was not given to the police so that they can unduly harass people with unwarranted investigation and interrogation.

Fortunately, the District Court of New South Wales has already dealt with the issue of police misusing RBT powers in the popular case of R v Buddee.


The illegal use of RBT’s and the case of R v Buddee


On 22 October 2015, Police patrolling Desmond Street, Merrylands came across a Holden Commodore. There was nothing suspicious about the vehicle or its occupants.

However, the police decided to stop the vehicle anyway. The driver of the vehicle was Michelle Buddee, and with her in the vehicle was a single passenger.

After stopping the vehicle, the police interrogated Ms Buddee and the passenger, following which the police decided to search them and the vehicle.

During the search, police located a small amount of the drug ice. As a result, Ms Buddee was charged with supplying prohibited drugs.


The defence case

In Court, the defence argued that the Judge should exclude evidence of the drugs that the police found during the search because the police had illegally stopped the vehicle.

The defence claimed that the police had no basis to stop the vehicle or to interrogate its occupants, and that the stop was not a random breath test, but rather, a “random crime check” that the police were trying to disguise as a random breath test.


The decision of the Court

The Court found that the police had illegally used the disguise of a random breath test to facilitate an ulterior motive, that is to stop and interrogate the occupants of the vehicle without a lawful reason.

In deciding to throw out the police case against Ms Buddee, the Court held that “RBT powers cannot be used to justify the arbitrary stopping of vehicles, interrogating of occupants or searching of vehicles for crime detection.”

The Court held that the police officer “should not have attempted to elicit admissions when he had no reasonable basis for questioning the accused, nor a reasonable suspicion at that time

The Court concluded that “the police purpose in stopping the vehicle was not to conduct a random breath test. The stopping was illegal; the detention whilst enquiries were made was illegal; the process was not based on any legally justifiable state of mind on the part of the officers.”


Illegal random breath tests and the coronavirus lockdown 

Since the introduction of the coronavirus lockdown, the police have issued hundreds of fines to persons alleged to have breached the lockdown restrictions.

A large portion of these fines were issued to drivers who were stopped by police for a “random breath test”, where during the conduct of the breath test, the person was questioned by the police.

This does not mean that each of these occasions amounted to an illegal stop and interrogation, If a police officer genuinely stops a vehicle for the purpose of conducting a random breath test and during the process, the occupants volunteer information about their movements, that would not amount to an illegal stop or interrogation.

There is nothing in the law that says it is illegal for a police officer to ask questions that are additional to a separate genuine purpose. Although equally, a person is not legally required to answer these questions.

Nonetheless, if it can be established that the real reason the police officer stopped the vehicle was for the purpose of questioning under the disguise of a random breath test, that would amount to an illegal stop.


How can I prove that the real purpose of the stop was an illegal random breath test?

The best way to prove that a police officer has stopped you for an improper purpose is to video record the conversation and interaction with the officer.

Additionally, you should ask the officer questions about the stop. There is absolutely no need to be rude and this can be done in a polite and friendly manner:

  1. Indicate to the police officer that you are recording the interaction on your mobile phone. There is nothing illegal about recording police, however, do not be rude and do not shove the phone in the officer’s face.
  2. Ask the police officer to identify themselves, including their name, rank, and station.
  3. Provide your driver’s license if it is requested.
  4. Ask the police why they have stopped you?
  5. If the police have stopped you for an RBT, indicate that you are ready to comply with the test.
  6. If the police ask you questions about your movements, indicate that you would like to politely exercise your right to silence.
  7. At the completion of the breath test ask the police if you are free to leave.
  8. If the police do not allow you to leave, ask them why you are being detained.
  9. If you are issued a fine, do not argue with the police, the time and place to argue the fine is in court.

Based on the interaction, the real intention of the police officer will become clear. Excessive and invasive questioning about movement is usually a good indication that the police officer has stopped the vehicle for questioning as opposed to an RBT.


What happens if I am able to prove that the police stopped me for an illegal random breath test?

If it is proved in court that the police conducted an illegal random breath test, the court can exclude the police evidence under Section 138 of the Evidence Act.

If the evidence is excluded because of an illegal random breath test, the case will be dismissed and the person will not have to pay the fine.

Additionally, depending on how serious the police impropriety is, there may be circumstances in which the person can sue the police for the impropriety.


Do the courts take police impropriety seriously?

Some might think that improper police activity is not a big deal, fortunately however, the law does not take that view. Courts in New South Wales take police impropriety very seriously.

In fact, the most powerful court in Australia, the High Court, said in the well-known case of Williams v The Queen:

“It is of critical importance to the existence and protection of personal liberty under the law that the restraints which the law imposes on police powers of arrest and detention be scrupulously observed.”

They added further:

“The right to personal liberty cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes.”

Courts will take illegal random breath tests seriously.


How can I fight the fine if I believe that I have been stopped  illegally?

Unfortunately, these illegal random breath tests or as we call them, “illegal random lockdown checks” have become a common theme in NSW since the introduction of the lockdown.

If people are not willing to fight for their rights and freedoms, we may truly find ourselves living in a police state. Despite the pandemic, police should not be given free rein to act outside their legal powers.

On that basis, our office is offering free telephone legal advice to explain how a person can go about challenging a fine resulting from an improper police stop.

Our office will remain open during the coronavirus lockdown, this includes our 24 hour, 7 days a week free legal advice hotline.