New Police Tactics

[RKZ234]

The whole point of the bas test is to affirm what they already suspect based on the reading of the alchometer or the refusal/failure to submit to the alchometer. Regardless of whether the arrest comes from statute or the common law, there is an arrest where you are placed in the back of the paddy wagon and conveyed to the police station. I dont think there can be any logical arguement to the contrary.

And there is nothing voluntary about it. 'I now require you...' is how the statement is prefixed and that is because under the legislation you are required to undergo the road side breath test and then at the station or in the booze bus you will be required to submit to a bas under penalty if you do not comply. That is why when people are arrested for failing a road side breath test they are usually not cautioned ie you do not have to say or do anything... because they do have to at least do something (submit to the bas).

I agree the Police members roadside wording conveys the impression that you MUST go. In reality you SHOULD go.

EVERY person arrested is required to be advised as soon as practicable why they are under arrest and cautioned.

The roadside test is a Preliminary Breath Test (PBT) There is no pass or fail on a PBT. There are several types of PBT. Some simply indicate the presence of alcohol in your breath. More recent PBT's display an INICATIVE reading which is not official and not admissabl in court. (Which is why the Police ember wil not tell you your PBT reading if you ask as it's not accurate) The certified & calibrated Breath Analysis Machine reading obtained back at the station or in a booze bus is the only time you pass or fail.

If you were to be arrested for refusing to submit a roadside test, you would be cautioned and advised for what offence you are under arrest BEFORE being placed in the back of the car or van, unless you became violent. After which you'd be facing several other charges.

The grounds for arresting you would be to prevent a continuation of the offence of driving whilst exceeding Blood Alcohol Content (BAC) But they'd need to have reasonable grounds to suspect you were over the limit. (ie. eyes glazed, slurred speech, unsteady on feet, strong smell of alcohol) to justify the arrest. So if you've handed over your licence (your identity is known by them) and walk away, there's no power of arrest. Refusing a breath test has no power of arrest if you have provided suitable identification.

 

[Person_A]

I will guarantee you that in Victoria (I believe all other states too) you are not under arrest when you go back to the station to conduct a Breath Test.
You are not compelled go, to be there or to furnish a breath sample. Under law you are there of your own free will and the court WILL NOT "imply a defacto arrest" You have a choice wether or not you accompany the Police member back to the station.

BUT, by refusing to go back to the Station for a Breath Test or to submit a blood sample, you are guilty of an offence for refusing. (24 months loss of licence plus a fine in Vic for first offence and 48 months plus a fine for 2nd & subsequent offences)

.[/b]

Seeing as how I know very little about the laws of Victoria, I cant disagree with what you are saying. But I will ask one question: When you refuse the road side test, then refuse the bas test, what do they do with you then? Surely they dont just send you away and say the paperwork is in the mail?

In NSW there are seperate offences for refusing the roadside and the bas. How it usually works is you refuse the roadside, they arrest you. Charge one. Taken to the station, placed into the custody system and then given the opportunity to submit to the bas. If you refuse that, charge two. If you submit and fail the bas, charge two. If you submit to the bas and pass the bas, you still have the first charge.

But the whole point of this discussion is are you under arrest when you are required to attend the station for the bas and on that I will say this: If the alternatives are come with me or you will be arrested then there is no better example of an implied, defacto arrest.

 

[RKZ234]

Seeing as how I know very little about the laws of Victoria, I cant disagree with what you are saying. But I will ask one question: When you refuse the road side test, then refuse the bas test, what do they do with you then? Surely they dont just send you away and say the paperwork is in the mail?

If you have provided your D/Licence and refuse the PBT and refuse a Breath Test, you will be charged on summons. (automatic 24 mths loss of licence plus a fine in Vic for 1st offence)

You will only be arrested if you appear visibly alcohol affected and it is suspected on reasonable grounds you are over the prescribed content of alcohol limit for your licence conditions and attempt to drive away. (arrest is justified to prevent a continuation of the offence you were committing prior to being intercepted)

If you get out and walk away there is no power of arrest.

 

[rattattack1313]

no arrest...

no..they don't worry about arresting you...they just whack a slug or 3 into you.......seems the go these days fer the cops to open up 1st, ask Q's later..
..my cousin was in a shootout with the cops in Vic once, years ago.... not that he and his mates were shooting back....he ended up with 9 holes and 17 creases out of it..... he reckons 45's aint ****.......lol....happened down Tarralgon way.....

 

[flash]

dont know what happend to this thread. it was about cops enticing us to break the law but now all i am reading is stuff about citizins arrests and when u r under arrest and when ur not.
well i just wanna say about the citizins arrest if someone came up and said that i was under citizins arrest i would tell the **** to go **** off

 

[Julie]

Agreed flash, this thread has gone way off topic and is turned from a legitimate question to copbashing, to bickering over laws. Time to close it me thinks...............