Traffic 2 Flashcards
What does clause 3 of Schedule 3 require prior to breath testing a person?
In summary:
Cl 3 (1) (WHO) outlines the people you can do a breath test on if you have reasonable cause to think that the person is/was the driver of a motor vehicle on a road, is/was a driver attempting to put the vehicle in motion or is/was sitting in front passenger seat next to a learner driver who is/was the driver.
(2) (prlim check for alcohol) says that before making them do a test you may get them to do a prelim test to check if there’s any alcohol on their breath. you can use a device if need be.
(3) (power to make them stop) says you can request signal the driver of a motor vehicle to stop for purpose of this clause.
(4) (they must stop) says they have to stop if you give them any request or signal to stop under this clause
Clause 3 Power to conduct random breath testing
Santa clause(clause) tapping a Tree(3) on top outside north sydney police station. two electrcity towers (power) zapping the tree which fires a condom over the tree and wrapps it in duct tape (conduct) tree then grows legs and ran after dominic fijac (random). tree gets stopped for an RBT and blows into a rbt tube (breath testing).
(1) A police officer may require a person to submit to a breath test in accordance with the officer's directions if the officer has reasonable cause to believe that--
a massive oversized sergeant haste sitting in foyer of north sydney police station (a police officer) he’s eating hay and neighing like a horse (neighhh hayyy - sounds like may). he starts wrapping wire (wire) around the hay that gives off a foul odour (reeks) (reeks+wire = require) a person (think of prince of persia actor (persian)). Primnce of persia has a baseball mit on each hand which he uses to catch an enomrous submarine that crashes through the foyer towards him (to submit). Haste then shoves an alco in princeof persia mouth while hes holding the submarine ( a breath test). prince of persia rips open the submarine and finds an accordion inside which he starts playing (in accordance). haste cant stand the sound blocks his ears then points and directs him to leave. give him a direction (with the officer’s direction).haste then squirts him all over with Jif (if). Rhys hart then bursts into station riding a bull (reasonable (rhys on a bull)) he then wraps it in gauze (cause) before leaves start sprouting from the gauze covered in bees (believe)
(a) the person is or was driving a motor vehicle on a road, or
persian (person) on the floor which turns to fizz (is) then wosif (or was) he then jumps into a mclaren and drives off down the road (driving a motor vehicle on a road. crashes into red alert style ore (or) thats growing from the road
(b) the person is or was occupying the driving seat of a motor vehicle on a road and attempting to put the motor vehicle in motion, or
the persian starts getting covered in fizz (is) and then ore (or) starts to sprout out of the ground and protrude into the vehicle. persian kicks wosif (was) out and occupies the driver seat and then builds an arabian tent (attempt) around the mclaren motor vehicle and ties the tent pegs to the wheels. he then tries to drive off but the wheels keep spinning and moving car from side to side but it wont drive off (to put in motion)
(c) the person (being the holder of an applicable driver licence) is or was occupying the seat in a motor vehicle next to a learner driver while the driver is or was driving the vehicle on a road.
the persian jumps out and sprays the whole car yellow and paints big letter L all over it on each side and roof/bonnet and boot etc for a learner drive. persian then sits in front passenger seat which is super fizzy (is) and ore (or) starts to protrude from the seat and then wosif (was) tries to pull him out and sits in front passenger seat instead next to a giant learner licence card sitting on the driver seat. Wosif starts sratching out the S between YSL perfume bottle leaving only YL (While) and then wet fur starts growing out of the giant learner licence which wosif starts to dry (dry fur = the driver) fizz (is) bubbles start coming off the fur before ore grows higher and pushes Wosif (was) into the driver seat before driving off down pacific highway (driving the vehicle on a road).
(2) Before requiring a person to submit to a breath test under subclause (1), and for the purpose of determining whether to conduct such a test, a police officer may conduct a preliminary assessment to determine if alcohol is present in the person's breath by requiring the person to talk into a device that indicates the presence of alcohol.
(before person does a breath test under subclause 1 and to decide whether to do a test, officer may do a prelim test to see if there is alcohol on the person’s breath…i.e. use the alco without the tube) They don’t have to though (may).
(3) Without limiting any other power or authority, a police officer may, for the purposes of this clause, request or signal the driver of a motor vehicle to stop the vehicle.
(officer may request or signal driver of motor vehicle to stop for purpose of this clause (RBT))
(4) A person must comply with any request or signal made or given to the person by a police officer under subclause (3).
What does clause 5 of Schedule 3 require prior to placing a person on a BAS
Clause 4: Arrest following failed breath test.
(1) Power to arrest under subclause 2 if
(a) the breath test comes back more than 0grams alcohol in 210 litres of breath or 100milligrams of blood..if reasonable cause to believe novice driver
(b) the breath testcomes back not less than 0.02grams alcohol in 210 litres breath of 100mg blood if person is a special category driver
(c) breath test comes back not less than 0.05g
(d) refused to submit to breath test or fails to submit in accordance with directions of officer
(2) (a)can arrest without warrant….for subclause 1.
(b) take person (or cause to be taken) with as much force reasonabley necessary
(c) detain person at police station or wherver else for a breath analysis
(d) if clause 5A permits take them to hospital or presecribed place for a blood sample with such force reasonably necessary and detain person there for a blood sample.
Clause 5 - Breath analysis after arrest:
(1)Officer MAY require a person who has been arrested under clause 4 to submit for breath analysis…(2)done by a cop who is authorised to do so..at/near police station or other desirable place (3)issuing them with BAS certificate - as soon as practicable after breath analysis done. the cop operating the breath analysing instrument must give a signed stattement to the person showing the alcohol concentration in either 210 litres of breath or 100mg of blood and day and time of breath analysis
5 Breath analysis following arrest
(1) A police officer may require a person who has been arrested under clause 4 to submit to a breath analysis in accordance with the directions of the officer.
(2) A breath analysis must be carried out by a police officer authorised to do so by the Commissioner of Police at or near a police station or such other place as that officer considers desirable.
(3) As soon as practicable after a person has submitted to a breath analysis, the police officer operating the breath analysing instrument must deliver a written statement to that person signed by that officer specifying the following--
(a) the concentration of alcohol determined by the analysis to be present in that person's breath or blood and expressed in grams of alcohol in 210 litres of breath or 100 millilitres of blood,
(b) the day on and time of the day at which the breath analysis was completed.
What is the difference between a Novice Driver and Special Category Driver?
Five different offences under s110 of RTA 2013 of driving with prescribed concentration of alcohol.
- Novice Range, Special Range, Low Range, Middle Range & High Range.
Elements of offence under s110: Accused; drive; motor vehicle; prescribed concentration of alcohol
NOVICE RANGE PCA - Greater than 0.00 less than 0.02 g alcohol in 100ml of blood or 210litre breath
SPECIAL RANGE PCA - 0.02g or greater to less than 0.05g
NOVICE DRIVER definition in s107(1) of RTA 2013:
Novice driver in relation to motor vehicle means:
in high level summary: learner, provisional, interlock licence holder; a person whos had their application refused for all three; stopped holding because of cancellation/suspension, disqualification or expiry or; lastly, just never held a licence
Expanded summary: (a)a learner, p plater or interlock licence holder; (b) not authorised because they had a licence application refused for a learner, provisional or interlock licence in this state or somewhere else.(c) not authorised to drive because theyve stopped holding a learner licence, provisional licence or interlock licence because of i)cancellation/suspension or ii)disqualification of person or iii)expiry of the licence or d) not authorised in this jurisdiction because person never obtained an applicable licence for any class of MV
OFFENCE - s110 of RTA - presence of prescribed conentration in person’s breath or blood
(1) Offence - novice range PCA
A novice driver must not, while there is present in the driver’s breath or blood the novice range prescrobed concentration of alcohol -
a)drive the motor vehicle
b) occupy driving seat of motor vehicle and attempt to put in motion
max 20 PU for first offence - 30 Pu for second or subsequent
(REMEMBER APPLICABLE LICENCE OF A PARTICULAR TYPE MEANS A LICENCE OF TH TTYPE OR A RECEIPT TO INDICATE YOU HAVE A CURRENT LICENCE OF THAT TYPE or AN EQUIVALENT LICENCE OF THAT TYPE FROM INTERSTATE OR OVERSEAS)
s107(2) - DEFINITION OF SPECIAL CATEGORY DRIVER:
a) applicable learner, provisional or interlock driver licence for MVs of a class that includes the MV
b) person not authorised to drive the MV in this jursidction because:
i) had application for a relevant applicable driver licence refused
ii) ceased holding relevant applicable driver licence because of suspension/cancellation
iii) ceased holding applicable learner, provisional, interlock because of expiry
iv) ceased holding relevant applicable licence because of expiry and more than 6 months passed since expiry (doesn;’t apply to learner, P1 P2, interlock)
v) person has been disqualified from driving
vi) person has never obtained a relevant applicable driver licence or
c) MV driven for hire or reward, or in course of trade or business, as a public passenger vehicle within meaning of passnger transport act 1990 (basically buses)
ca) taxis or hire vehicles (uber drivers etc) under point to point transport (taxis and hire vehicles) act 2016
d) the MV is a coach
e) MV exceeds GVM of 13.9tonne
f) MV in combination with trailer has GCM greater than 13.9tonne
g) (i)MV or any trailer carries dangerous goods and has to have a sign attached under Dangerous Goods (Road and Rail Transport) Act 2008
ii) carries any radioactive substance within meaning of Radiation Control Act 1990
DEFINITION OF SPECIAL CATEGORY SUPERVISOR is under s107 (3). Basically just says that if the person WERE driving the motor vehicle the person would be a special category driver in respect of the motor vehicle
s110(2) OFFENCE - Special range PCA
A person must not, while there is present in the person’s breath or blood the special range PCA
a) if person is special category driver - drive the MV or
b) If person special categeory driver - occupy driver seat of MV and attempt to put the vehicle in motion or
c)if special category supervisor and holds applicable driver licence (excluding Provisional or learner licence) occupy seat next to a learner driver.
What is the correct blood/breath alcohol content required for offences under s110 of the Road Transport Act (RTA) 2013?
Outlined by s108 of the RTA 2013:
108 Prescribed concentrations of alcohol
“novice range prescribed concentration of alcohol” means a concentration of more than zero grams, but less than 0.02 grams, of alcohol in 210 litres of breath or 100 millilitres of blood.
“special range prescribed concentration of alcohol” means a concentration of 0.02 grams or more, but less than 0.05 grams, of alcohol in 210 litres of breath or 100 millilitres of blood.
“low range prescribed concentration of alcohol” means a concentration of 0.05 grams or more, but less than 0.08 grams, of alcohol in 210 litres of breath or 100 millilitres of blood.
“middle range prescribed concentration of alcohol” means a concentration of 0.08 grams or more, but less than 0.15 grams, of alcohol in 210 litres of breath or 100 millilitres of blood.
“high range prescribed concentration of alcohol” means a concentration of 0.15 grams or more of alcohol in 210 litres of breath or 100 millilitres of blood.
Which modes of transport could result in a conviction for a DUI but not a PCA?
DUI is driving under the influence - Elements: Accused; under the influence of alcohol or drug; drive; vehicle. or in lieu of last two occupy driver seat of vehicle attempts to put in motion.
DIFFERENCE WITH PCA OFFENCES IS THAT DUI REQUIRES PROOF OF VEHICLE NOT MOTOR VEHICLE. (except for subection c of DUI next to a learner driver in a motor vehicle)
s4 definition of motor vehicle is “motor vehicle” means a vehicle that is built to be propelled by a motor that forms part of the vehicle.
definition of a vehicle is “vehicle” means–
(a) any description of vehicle on wheels (including a light rail vehicle) but not including any other vehicle used on a railway or tramway, or (b) any description of tracked vehicle (such as a bulldozer), or any description of vehicle that moves on revolving runners inside endless tracks, that is not used exclusively on a railway or tramway, or (c) any other description of vehicle prescribed by the statutory rules.
So you could be charged with DUI if driver of a light rail train or even a pushbike (check this)
REMEBER police can get person to submit to a sobriety assessment under Clause 13. which says in subsection (1) that a police officer may require a person to submit to sobriety assessment if (a) person has submitted to a breath test under Cl 3(1) (a) or (b) (aka RBT) AND (b)the result of the test doesn't require them to submit to a breath analysis (i.e. negative breath test) cl 13 (2) A person cannot be required to submit to a sobriety assessment unless--
(a) a police officer has a reasonable belief that the person may be under the influence of a drug--
(i) by the way in which the person--
(A) is or was driving a motor vehicle on a road, or
(B) is or was occupying the driving seat of a motor vehicle on a road and attempting to put the vehicle in motion, or
(ii) by the behaviour, condition or appearance of the person at the time of or after the relevant event referred to in subclause (1)(a), and
(b) the assessment is carried out by a police officer at or near the place where the person underwent the breath test.
s112 - Under the influence can be established by expert evidence or evidence of the observation of police officers - Judy Pearl reports
s112 (1) a person must not if under the influence of alcohol or any other drug,
a) drive a vehicle
b) occupy the driver seat of a vehicle and attempt to put the vehicle in motion
c) if holder of applicable driver licence,occupy seat next to learner driver who is driving.
(2) a) if charged with offence against subsection 1, the CAN may allege person under influence of more than 1 drug, and can’t be dismissed on grounds of uncertainty or duplicity if each drug described in CAN .b) offence proved if court satisfied beyond reasonable doubt that defedant was under influence of i) a drug described in can or ii) a comibination of drugs any one of which was described in CAN.
Does the RTA require ‘home’ or ‘usual place of abode’?
Police cannot breath test at a persons home under clause 2(1)(e) of schedule 3 of RTA 2013. There is no definition of home in the RTA 2013 but the concept has been likened to previous term, “place of abode”. No definition for person’s home in the Act. “Persons home” is what the Act now required. It is wider reaching than place of abode and no relevant judicial authority but can use old cases for place of abode like Police v O’Brien; Hall v Coughlan and Others; Germolous and Higginbotham. (check slides for more info)
What “intent” is required to establish an offence of willfully alter under clause 18 of schedule 3?
Cl 18 of Sch 3 of RTA 2013 makes it an offence to willfully alter the concentration of alcohol or other drugs in a person’s breath or blood between the time of driving and the time of the relevant testing (breath test/BAS/Blood test). Offence requires prosecution to prove intent. What constitutes willful alteration addressed by Grove J in Thorpe v Shepherd and another. SPECIFIC INTENT WHICH THE PROSECUTION MUST PROVE IS THE INTENT TO ALTER THE BLOOD ALCOHOL CONCENTRATION. - NOT SIMPLY TO INTEND THE ACT OF CONSUMPTION OF LIQUOR.
LEARNING OBJECTIVES :When can a person not be breath tested, BAS or have blood urine sample taken?
(1) A police officer cannot require a person to submit to a test, analysis or assessment, or to provide a sample, under this Schedule:
(a) if the person has been admitted to hospital for medical treatment unless:
(i) the medical practitioner in immediate charge of the person’s treatment has been notified of the intention to make the requirement, and
(ii) the medical practitioner does not object on the grounds that compliance with it would be prejudicial to the proper care or treatment of that person, or
(b) in relation to the taking of a sample under clause 11 {accident patients} —if an authorised sample taker has objected on the grounds that compliance would be dangerous to the person’s health, or
(c) if it appears to the officer that it would, by reason of injuries sustained by that person, be dangerous to that person’s medical condition to submit to a breath test, analysis, or assessment or provide the sample, or
(d) at any time after the expiration of the relevant period (if any) for test, analysis, or assessment or provide the sample, or
(e) at that person’s home. (PERSONS HOME CASE LAW IS Nowlan v Werry
Germolous v Higginbotham)
The 15 minute observation period expires and the person is placed on the BAS. They are required to supply a sample of their breath. On 3 occasions the person is seen to appear to blow into the tube. The instrument records insufficient sample on 3 occasions. What is the correct offence?
Clause 16(1)(b) of schedule 3 of Road Transport Act 2013. An offence of ‘failure’ to submit
Case – Walker – Too intoxicated no excuse.
Case – Olejarnik – If outside 2 hour time limit obtain expert evidence. Cert. inadmissible.
The 15 minute observation period expires and the person is placed on the BAS. They are required to supply a sample of their breath. On 3 occasions the person is seen to appear to blow into the tube. The instrument records insufficient sample on 3 occasions. What is the correct offence?
Clause 16(1)(b) of schedule 3 of Road Transport Act 2013. An offence of ‘failure’ to submit (THIS IS OFFENCE FOR FAILING OR REFUSE)
Case – Walker – Too intoxicated no excuse.
Case – Olejarnik – If outside 2 hour time limit obtain expert evidence. Cert. inadmissible.
• Understand what clause 40 of Schedule 3 prohibits
Clause 40(1) of Sch 3:Statutory bar to a person being convicted of both DUI (s112(1)) and one of the other related alcohol or drug offences (S 110, 111, Sch 3 (Cl 16,17,18)), if the charges arise out of the same circumstances. The key word is “convicted” Cl 40(2) provides a bar to charging a person with DUI alcohol if they have submitted to the breath analysis or blood sample in accordance with the directions of a police officer.
when it comes to offences in and around blood samples, breath tests and DUI’s, a quick check of clause 40 should take place to determine whether the charges are validly laid and whether we can seek a plea to all sequences.
LEGISLATION:
40 Double jeopardy in relation to alcohol and other drug offences
(1) A person is not liable to be convicted of both an offence against section 112(1) and a related alcohol or drug offence if the offences arose directly or indirectly out of the same circumstances.
(2) A person who--
(a) is required by a police officer to submit to a breath test by reason of the occurrence of an event referred to in clause 3(1)(a), (b) or (c) and, as a consequence, to submit to a breath analysis or to provide a sample of the person's blood under Division 2 of Part 2, and
(b) submits to the breath analysis in accordance with the directions of a police officer, or to the taking of a blood sample in accordance with the directions of an authorised sample taker,
cannot be charged with any of the following offences against section 112(1)--
(c) the offence of driving a motor vehicle, at the time of that event, while the person was under the influence of alcohol,
(d) the offence of occupying the driving seat of a motor vehicle and attempting to put such motor vehicle in motion, at the time of that event, while the person was under the influence of alcohol.
(3) A person who has had a sample of blood taken in accordance with clause 11 because of an accident is not to be charged with an offence against section 112(1) if it is alleged as a component of the offence that the person was under the influence of alcohol and the offence relates to the same accident.
(3A) A person--
(a) who submits to the taking of a blood sample under clause 5A, or
(b) who is prosecuted for failing or refusing to submit to the taking of a blood sample under clause 5A but who is able to establish the defence under clause 17(4) in relation to the prosecution,
is not liable to be convicted of an offence against clause 16(1)(b) in relation to the person's inability to submit to a breath analysis that gave rise to the requirement to provide a blood sample.
(3B) A person is not liable to be convicted of both an offence against clause 16(1)(b) and an offence against clause 17(1)(a1) if the offences arose directly or indirectly out of the same circumstances.
(4) In this clause--
"related alcohol or drug offence" means an offence against any of the following provisions--
(a) section 110,
(b) section 111,
(b1) section 111A,
(c) clause 16,
(d) clause 17,
(e) clause 18.
• Understand the consequences of unlawfully obtaining a breath test/BAS/blood/urine sample.
Mistakes don’t always invalidate evidenceBlood Sample Taken mistakenlyNo MVA or sobriety test
Driver involved in a serious road accident. Despite her demonstrating heavy intoxication, alcohol was not registered by two RBTs. She was taken for blood and urine sample tests by police, who (mistakenly) believed that they were acting pursuant to the RT(STM)A, and was charged HRPCA.
Court should consider the gravity of the breach (s 138(3)(d) Evidence Act).
Fullerton J, stated (at [38]) that where a contravention of the law is innocent and alleged offence is serious, there would need to be “powerful countervailing considerations before the evidence is rejected”.
DPP v Langford [2012] NSWSC 310
HERES SOME RANDOM EXERCISE ANSWERS FROM SLIDES:
What is the power to breath test Ernest?
Sch 3 Cl 3 RTA provides power to RBT. Requires that police have RG to believe that Ernest was a driver.
Power also limited by Cl 2. Can’t RBT after relevant period.
Cl 2(2)(a) provides a 2 hour relevant period for an RBT.
Police can’t establish he was driving within the last 2 hours.
Did police Act within their powers? Are the BAS results admissible?
Probably not. Can’t prove relevant period
But may argue s 138. Acted improperly, but serious offence and no malicious intent of police. DPP v Langford
What additional evidence might the police have gathered?
Did anyone see what time Ernest left the RSL
CCTV of time Ernest leaves the RSL
• Understand how to attempt to rebut Carrall arguments.
NSW Police v Carrall [2016] NSWLC 4
PIDS- Defence – Honest and Reasonable Mistake of Fact
On 26 May 2015 and 23 June 2015, Joseph Carrall was apprehended and charged with the offence of driving with an illicit drug present in his blood. He pleaded guilty to the May offence and not guilty to the June offence citing the defence of an honest and reasonable mistake of fact. The court decided the defence of ‘honest and reasonable mistake of fact’ is a reliable defence which suggests the offence is one of strict liability.
H&RMOF found, but CARRALL may be distinguished
Court found belief by the defendant that “he no longer had the presence of THC in his saliva” [47], 9 days after smoking cannabis .
Police officer gave advice to defendant that saliva should be clear after a week of smoking THC a month prior incident [13], [17]
The defendant relied on this advice. The period relied on by the defendant was 9 days. “The time can only be sufficient where it is completely outside the period of any affect. Nine days is well outside that period.” [63]
The magistrate made a finding of fact that the belief was honest [21] and reasonable [67].
Challenge the Defence
Is it Honest?
Carrall found honest – no expert evidence
Wasn’t honest if subjective awareness (smell cannabis on own skin) (Police v Snow [2017], like Bone)
Is it Reasonable?
Carrall found reasonable
Advice from police (not denied) a month earlier
Mistake of fact? (opinion about his saliva)
Reasonably within the knowledge of the Defendant (Giachin (2013))
Otherwise innocent? (Kailahi)
• Understand how the prosecution can establish the element of “under the influence”
for DUI road or road related area is referenced by s112 but not a proof of the offence.
- May be able to prove DUI solely by observations. DUI could in theory be established anywhere.
The test is whether the person is under the influence of alcohol or any other drug, not whether the person’s driving was affected by a drug or alcohol. DPP v Kirby [2017] NSWSC 1754, [17]
“Alcohol or any other Drug” :does not create two separate offences; not bad for duplicity in an indictment
Proof of under the Influence
If drug and alcohol are alleged, Proof of only one of the alleged substances is sufficient.
There are two separate methods to prove UI:
1. Direct observations of the person,
The smell of alcohol, Slurring of words and speech,
Unsteadiness on the feet, swaying, leaning on objects,
Can not walk a straight line, Confusion, Flushed (red) face,
Glazed or blood shot eyes, dilated pupils, Dull expression,
Sleepy, inattentive, Argumentative,
Dishevelled clothing, Inappropriate manner
Case R v Whitby.
OR
2. Analysis of the person’s blood and/or urine.
Scientific Means of Proving Under the Influence
BAS results
Division 4 – Accident Hospital Patients (Cl 11)
Division 4 – Fatal Accidents (Cl 12)
Division 5 – Sobriety Assessment
Results outside of deeming provisions for PCA
When Blood Samples Are Not Permitted:
If more than 12 hours after the accident.
Any subsequent DAL cert. from analysis of blood will only be prima facie evidence for alcohol if sample taken within 2 hours of collision and for drugs within 4 hours.
If outside time frames, Use expert to determine level of alcohol or drug at time of collision to support charge for either PCA or DUI.
Certificates as Evidence of the Analysis to Prove DUI
Blood or urine Samples:
Certificate to be signed by: (Sch 3 Cl 36)
Medical practitioner who obtained the blood,
Police officer who received the blood, and
Analyst who analysed the blood.
Tender the certificates
Certificate becomes proof of contents
Medical practitioner’s certificate proves how the blood was obtained.
Police officer’s certificate establishes continuity.
Analyst’s certificate proves the result/analysis
DUI certificates:
DUI: Deeming! Cert from the analyst (concentration of a drug in the blood or urine), is taken to be the
concentration of the drug in the defendant’s blood or urine AND
at the drug at the time of driving
Cl 32,33
IF sample taken within 4 hours
Onus upon the defendant to prove otherwise.
Defendant must adduce evidence to establish (balance of probabilities) the concentration is other than certified.
Ref: R v Relton : Defence must displace evidence of certificate. Also DPP v Mitchell; Bignill v DPP
• Understand what is required to prosecute a charge of wilfully
Clause 18 of Sch 3:
A person (other than a secondary participant in an accident) must not wilfully do anything:
to alter the concentration of alcohol in person’s breath between time of event 3(1)(a)(b)(c) when required to submit to a test and actually doing the test OR:
to alter concentration of alcohol between time ofevent when required to submit to breath test and the time when person submits to breath analysis
2 separate offences
- wilful act occurs before breath test.
- wilful act occurs after test
Purpose of legislation – if they consume alcohol it may affect the reading.
Case – Thorpe v Shepherd – the prosecution has to prove that the person intended to alter the concentration, not merely that they intended to consume some amount of alcohol after the triggering event.
