General Query - Breath Tests

[Trei]

The other night, i was getting money out of an ATM and a copper pulled up next to me. My car was a good 200 metres away (and even then, I don't think the copper knew I was the owner). The cop asked me what I was doing and proceeded to breath test me.

I'm unfamiliar on the law in Victoria, I've tried researching it via google and there isn't much to find on what the law is regarding a coppers right to breath test a guy, who isn't in a motor vehicle.

Naturally, if the police think you've just stepped out of the car I believe they can ask for a breath test up to 3 hours later, but in this instance I was merely walking towards the car, rather than stepping out of it. Even if I had have been drinking, whats to say I wasn't just going to sit in it without it running (which, under Victorian Law I believe is perfectly legal).

Does anyone actually know what the law is on this matter? I'm going to be pursuing the matter through whatever means necessary because this bloke was an A grade prick.

[Tom_1569]

From my understaning (which may not be the law), is they have the right to breath test you at any point in public or if they think you have been driving. One new years I remember they were breath testing random people on the street and putting them in the drunk tank. But if you were to blow over the limit then I guess he would have to prove you were driving or intent to drive.

Also in Victoria isnt it illegal to be drunk in your car with the keys or some shit?

[fkford]

They are allowed to breath test anyone they like in public not on private property. Im pretty sure you can drink drive on your own property - dont quote me on that.

As for drinking in your car, if the keys are in the ignition and you are drinking then they can call it drink driving. If the keys are not in the ignition but say in the centre console or on the seat its perfectly legal to be smashed.

[minux]

Police have 3 hours from when you leave a vehicle to breath test you.

If they did not see you leave your vehicle, you can refuse the test. However, you may be charged with refusing to give a test. So make sure it can be backed up on that.

[Gus]

Ah in NSW my friend had 4 people in the car when it was parked infront of his house and he was in the drivers seat with keys in hand and they charged him with the whole "more than 1 passenger after 11". His licence was suspended for 3 months on the spot but then about 2 weeks later that fine + suspension was revoked due to him putting forward a complaint for unfair treatment etc. In my experience they will still try to charge you if you are in the drivers seat and the keys are not in the ignition due to the fact that it is "almost" a crime and that the general public don't have too much information regarding the laws so the popo use that advantage. Show some knowledge and respect and it's all good

[Not_An_Abba_Fan]

Ah in NSW my friend had 4 people in the car when it was parked infront of his house and he was in the drivers seat with keys in hand and they charged him with the whole "more than 1 passenger after 11". His licence was suspended for 3 months on the spot but then about 2 weeks later that fine + suspension was revoked due to him putting forward a complaint for unfair treatment etc. In my experience they will still try to charge you if you are in the drivers seat and the keys are not in the ignition due to the fact that it is "almost" a crime and that the general public don't have too much information regarding the laws so the popo use that advantage. Show some knowledge and respect and it's all good

If you are in the car with the keys on you then you are deemed to be in charge of the vehicle, regardless of whether you are driving, sitting or just leaning on it.

To the OP: Were you doing anything wrong? What's the big deal then, so you had to blow in the tube, don't get so worked up about it.

[bandit10]

Im pretty sure you can drink drive on your own property - dont quote me on that.

Sorry to quote you on this, but that is incorrect.

A friend of mine was killed in a accident on private land, the driver of the vehicle has been charged with causing his death and drink driving is also one of the other charges, the trail starts in a few months.
This was on private farm land in a farm vehicle.

[W84N01]

A mate of mine was charged for DUI, even thou he was in the back seat of his car sleeping it off as he didn't want to leave his car unattended.

The cops said that because he was in his car whilst drunk, even thou the keys were in his pocket and not in the ignition, and he was in the back seat and not the front seat, there was nothing stopping him from jumping in the front a driving off whilst still drunk.

Make sure you find out the nitty gritty on drinking and being anywhere near your car, otherwise you won't have a leg to stand on.

[OFF T4P]

i got charged for drink driving on private property . they tried to do me for dangerous driving to but i got out of that after about 5000 grand of legal fees. My car was parked in my mates drive way an he needed to go to work and a few other mates and i were still drinking under his house from the night befor. so i got in my ss and backed off the driveway and down into the front yard and the nice morning dew wouldn't let me get back up the little hill so i done a few donuts in the yard like only 2 or 3 and left the car there and the old fart next door hated us cause we partyed a bit hard for his likings and he called the cops. so then the cops rocked up and they new my car and i was still rotten drunk still drinking and they said they were taking me for drink driving i just said i was not driving. then i got a lawyer and he got my out of the other charge if i pleaded guilty to drink driving . prosecutor said the old man was willing to come give evidence . i blew .17 at the house but got charged for .144 just under the high . my lesson just don't drink drive ANYWHERE

[ClairBear]

A while back someone posted here how he went to a party and had too much to drink. Doing the right thing he rang his parents to come get him and waited in his car for them to arrive. The cops pulled up and did him for attempting to drive under the influence or something similar. Guy was protesting naturally and his parents pulled up while the cops were booking him. One would think at this point an Officer would see the story was indeed true, however no, they continued to book him.

Guess these days if you drink, don't have keys on your person or go within miles of a car.

[jakbob]

If you are in the car with the keys on you then you are deemed to be in charge of the vehicle, regardless of whether you are driving, sitting or just leaning on it.

To the OP: Were you doing anything wrong? What's the big deal then, so you had to blow in the tube, don't get so worked up about it.

That being the case then they may as well book you for sitting on the couch watching telly while drunk with the keys in your pocket. If you are in possession of the keys and the car is within easy walking distance then essentially you are in control of the car.
Point being if I'm sitting in the car or on the couch inside the house with the keys on me then I'm not drink driving unless I actually have the engine running and the car is moving.

[crazyspoon05]

A mate of mine was charged for DUI, even thou he was in the back seat of his car sleeping it off as he didn't want to leave his car unattended.

The cops said that because he was in his car whilst drunk, even thou the keys were in his pocket and not in the ignition, and he was in the back seat and not the front seat, there was nothing stopping him from jumping in the front a driving off whilst still drunk.

Make sure you find out the nitty gritty on drinking and being anywhere near your car, otherwise you won't have a leg to stand on.

It's a confusing one, I know of people who police have tried to book whilst 'sleeping it off' but they had their keys in the boot or under the bonnet so they couldn't be charged with intent to drive but obviously this won't always be the case

I have heard of some people getting breath tested at their house a couple of hours after driving which is unfortunate if you drive home sober and then have a few drinks at home as if you can't prove you were sober when you parked the car you're probably screwed

[bandit10]

any excuse for cops to bend you over and pull your pants down.

[Demonica]

I would suggest checking out this website in regards to Victorian d/d laws makes for some interesting reading on what your rights are. eg-It is not an offence to be asleep at the wheel of your car while you are over the legal limit , even if the engine is running. However, it is an offence to start the motor of a motor vehicle while you are over the legal limit. If you are awoken by the police when sleeping in your vehicle, you do not have to submit to a breath test (unless you are then attempting to start or drive the vehicle, or you have been a driver when involved in an accident in the preceding 3 hours), and you are not obliged to accompany the police to any place. The police will usually ask what time you were last driving the car, as this information is requried to prosecute a drink driving offence. The police can not prosecute a drink driving offence unless they know when the driver last drove the car.


http://www.trafficlaw.com.au/your.rights.html

[crazyspoon05]

However I'm pretty sure it's an offence to be asleep in your car in a public place

Even the well advertised 'power naps' on the side of freeways when you are tired are technically illegal IIRC

[minux]

Is an offence to sleep in your car, however, you only have to prove that you were fatigued, not ina condition to drive etc and you canot be fined for it.

Police these days seem to be getting worse. It is almost like every kid thatw as called names, bullied etc is now in the force seeking retribution for being a little frekly fat kid at primary school. It is getting arder and harder to come across a police officer thatisnt a complete power freak.

[LthlThrt]

i was in the city one night in QLD had been drinking and wasnt gunna drive home as my car was in a secure car park but didnt have money for a taxi so i walked home from the city which was a good 6hr walk, anyway the police pulled me up and breathtested me, blew a .32 and they put me in lockup for the night. i think it is a sfety thing that they have going on, protecting people from themselves and people under the influence, but sometimes i think that it just depends on the different cop that you get, if they wanna be an asshole or not, lucky i had good ones otherwise i probly could of been fined.