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QLD Refusal of Breath Test - Reason of Substantial Character?

Discussion in 'Traffic Law Forum' started by Itwasntmejudge, 16 July 2016.

  1. Itwasntmejudge

    Itwasntmejudge Active Member

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    I was recently parked outside of my house in my stationary vehicle having driven 5 minutes previously. Subsequently, 2 officers pulled up and requested a roadside breath test. I complied and blew approx .01

    I was asked to accompany the officers for an evidentiary breath analysis and was taken to the local station. I blew insufficient breath volume for the first test and the second test I blew sufficient volume and length of time to enable the machine to do its thing.

    To my horror, the machine returned a reading of 'unable to analyse sample' and I had grave concerns that the machine that was being used was even capable of providing an accurate reading having failed it's only objective.

    I was then requested to provide another breath sample to which I replied 'you have a faulty machine'. I already gave it an adequate sample. Subsequently, I was charged with failing to provide a sample and banned until the court date.

    I understand that an officer is able to request multiple samples to get an analysis but it is a defence, if one can provide to the court, the 'reason of substantial character' as to why further breath samples were not given.

    I was not trying to pervert the cause of justice as I had complied with all requests up to this point. But now I am looking at high range drink driving charges due to my fear that the machine could almost have printed anything out after its initial failure.

    How does one define reason of substantial character?

    Would any of you have provided further samples to a machine that is clearly incapable of performing it's one and only objective?

    I am not denying driving with alcohol above the legal limit in my system, I am denying that I failed to provide a sample due to my fears that the machine was faulty, or the operator had not followed procedure.

    Any suggestions?

    Thank you
     
  2. Tim W

    Tim W Lawyer

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    Are you sure it was 0.01?
    Was that a typo, or are you a driver
    who needs to always blow negative
    (as some pro-drivers are required to do)?

    Your first mistake.
    You should have just given them another sample.

    Sounds reasonable in the circumstances.

    No.

    You are not charged with a perversion offence.
    You are charged with failing to provide a breath sample.
    Providing a breath sample is an act about which you don't actually have a choice.
    So it would seem that the charge is well founded.

    Your fear of the machine is/was not well founded, and in any event, irrelevant at law.

    You don't. See below.

    Irrelevant.

    Your fears are irrelevant.

    Well, since you ask...

    1. Accept that your concerns about the machine are as spurious as they are irrelevant.

    2. Get a lawyer to represent you.

    3. If you were in fact PCA, then plead guilty to both charges.

    4. As to good character...

    Perhaps, if you can display genuine remorse for your actions
    (as opposed to regret at being caught in the first place,
    and resentment at being charged with multiple offences),
    then your purported "good character" may be to your advantage
    when the court is considering the scale and nature of the penalty.
     
  3. Itwasntmejudge

    Itwasntmejudge Active Member

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    Thanks for your reply Tim.

    I do believe that under s80 (11a) of TORUM that it is a defence.

    And yes it was a typo, I blew 0.1 roadside.

    It seems that you would willingly trust a machine that is unable to perform its one and only function.

    If you were driving your vehicle and the brakes failed would you continue driving in the hope that they started working again?
     
    Ozwarlock67 likes this.
  4. Tim W

    Tim W Lawyer

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    You are mistaken.
    By its very nature, your subjective lack of faith in the machine is not a "reason of a substantial character" of the type contemplated by that section.
    It's merely the point you are clinging to in the mistaken belief that it will somehow be a silver bullet that will get you off the charges.
    Man up and plead guilty.
     
  5. AlphaR1

    AlphaR1 Active Member

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    If your second attempt at supplying a sample of breath failed it was due to you, not the machine. The machine would have had thousands of successful samples before yours. At the very least you should have attempted the third sample. Sounds like you were just being defiant.

    If you were 0.1 roadside, had you successfully provided a same of breath, there would have been a very good chance that you would have gone low range, due to the time elapsed between your roadside reading and the sample that would have been provided at the station, in combination with the 10% that the machine at the station deducts in order to favour the motorist in regards to room for error.

    Now you are going to receive a penalty equal to having gone high range.
     

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