There was a moment in time when thousands of drink driving allegation legal challenges were mounted due to the police officer at the time not having the proper authority to conduct the test.
How did this happen?
Funny story actually…
To set this little tale up, we have to be clear about what the law states regarding drink or drug driving:
- A police officer must have the relevant authority to conduct an oral fluid test, use breath analysing equipment, or make a drug impairment assessment, which only occurs after specific training to perform these tests with accuracy and an authorisation from a higher authority.
- Any police officer can conduct preliminary roadside alcohol breath tests or a saliva test
- A driver with a blood alcohol level equal to or exceeding 0.05 per cent is violating the law
How hundreds of police officers started giving tests illegally
The Victoria Police Act allowed authorisations to be signed by the deputy commissioner, but then the Police Regulations Act came into play in July 2014, whereby only the chief commissioner could authorise a police officer to do these tests.
Turns out, the Victoria Police didn’t get the memo, with deputy commissioners signing off authorisations for hundreds of officers, but without the authorisation to do so – they had been usurped by the chief commissioner, without knowing. Over 1,100 drivers were arrested or given fines based on illegal tests during this time, causing the Police Minister to try to change a law so that police officers were not facing consequences for performing these tests illegally.
Ignorance of the law is no excuse – or is it?
Law enforcement are the first to say that ignorance is no excuse, however in this case Police Minister Wade Noonan was trying to insist that legislation be retroactively applied that would validate these illegal tests. This would then make the test legal, when the tests have been legally challenged. Noonan is claiming that the change in law, that Victoria Police did not follow, is a ‘mere technicality’.
Unfortunately for the Victoria Police, and working in favour of the hundreds of people accused of illegal levels of alcohol or drugs in their system, ‘mere technicality’ is how our legal system works. These mere technicalities are called laws.
So why did the law change so that only the chief commissioner could authorise the officers to give specific tests? We don’t know, but laws do not get changed – especially tightened and not in favour of the Victoria Police – without good reason.
Been involved in a drink or drug driving allegation? The police make mistakes all the time!
Talk to Vanessa Ash & Associates today.