VIC New Legislation on Breath Test by Victoria Police?

[bohemian71]

Hi. I'm seeking some information about the new retrospective legislation (Victoria Police Amendment (Validation) Bill 2015) relating to Victoria Police unauthorised breath testing and how it affects my case.

 

[John R]

Hi @bohemian71,

1. The Age article, Police Minister moves to block legal challenges by drunk, drugged drivers, provides a high-level summary of the Victoria Police Amendment (Validation) Bill 2015 (Vic).
2. This Bill became an Act (that is, the Victoria Police Amendment (Validation) Act 2015 (Vic)) on 11 August 2015.
3. The Purpose of the Act is to "amend the Victoria Police Act 2013 to address defects in relation to certain authorisations to operate breath analysing instruments, to carry out drug impairment assessments and to carry out oral fluid sample procedures."
4. The Act allows any certificates previously issued by the Deputy Commissioner (when the law previously only allowed the Chief Commissioner) to police officers to operate, among other things, breath analysing instruments to be retrospectively valid.

Hope this helps!

 

[Rod]

Is it arguable that this legislation is invalid and exceeds the powers of the state to enact?

Is an act or omission that was legal/illegal, at the time it was performed, cannot be deemed otherwise by the state at some later date, especially when the advantage accrues to the state?

 

[bohemian71]

Hi @bohemian71,

1. The Age article, Police Minister moves to block legal challenges by drunk, drugged drivers, provides a high-level summary of the Victoria Police Amendment (Validation) Bill 2015 (Vic).
2. This Bill became an Act (that is, the Victoria Police Amendment (Validation) Act 2015 (Vic)) on 11 August 2015.
3. The Purpose of the Act is to "amend the Victoria Police Act 2013 to address defects in relation to certain authorisations to operate breath analysing instruments, to carry out drug impairment assessments and to carry out oral fluid sample procedures."
4. The Act allows any certificates previously issued by the Deputy Commissioner (when the law previously only allowed the Chief Commissioner) to police officers to operate, among other things, breath analysing instruments to be retrospectively valid.

Hope this helps!

Thanks for the information John. There's not much discussion on the internet about all this. My case was adjourned (against my wishes) so I'm interested to find out how magistrates have been dealing with these cases both before and after the Act was in place. I was hoping to use this to aid my defence but I guess that's off the table now.

 

[bohemian71]

Is it arguable that this legislation is invalid and exceeds the powers of the state to enact?

Is an act or omission that was legal/illegal, at the time it was performed, cannot be deemed otherwise by the state at some later date, especially when the advantage accrues to the state?

Hey Rod,
do you have anymore info about this argument? It doesn't seem right the Victoria Police can simply change the law to suit themselves, claiming an administrative error. I can't imagine the average citizen being granted permission to do this.

The purpose of this legislation (and the road safety Act) is to promote road safety. However there are some instances where it is not so cut and dry and excessive punishment is handed out due to mandatory laws.

My situation:

0.34 a few months shy of the completion of a zero condition. No criminal intent on my behalf as I believed the condition had already expired so my intention was to remain under 0.05. However since it was within 10 years, it's classed as a second offence and I'm likely to have the book thrown at me. I don't own (and am not in a position to purchase) a car in which to install an interlock so I'll be unable to drive again indefinitely. The punishment doesn't really fit the crime.