Your Rights as a Driver When Pulled Over by Police for RBT in NSW


As the Coronavirus continues to spread across our world, fears continue to rise so much so that our Governments have been taking drastic and unprecedented actions to combat the spread of the pandemic.

Other than people shutting down shops, and even Castle Towers Myer store just recently, Police RBT’s have been suspended indefinitely out of concerns of the virus spreading to police officers and motorists.

So far, NSW, QLD and Victoria have temporarily stopped conducting RBT’s on roads.

The Police Associate President, Tony King has said, “With the devices in a stationary RBT set up, police could be testing 50, 60, 100 people over and over again”.

“This is about keeping people safe”.

The Queensland Police Service has said, “the decision has been made to minimise health risks to QPS officers and the community”.

“Road safety continues to be a significant priority for the QPS. The QPS will continue to undertake random breath and drug testing through high visibility mobile patrols”.

While RBT’s and RDT’s have been suspended, police officers can and will still be able to pull over motorists who are suspected of drink driving.

On the other hand, RBT’s will continue to be conducted despite the safety concerns in the ACT.

The ACT police have said, “ACT policing users a targeted, intelligence-led approach to deter, detect and remove impaired drivers from our roads. This approach will continue during the response to COVID-19”.

“In the past few years, rather than a large-scale static approach to roadside testing, every ACT policing member conducts random breath testing and we work hard to ensure we have the right people, in the right place, at the right time.”

Wish to discuss this topic with a drink driving lawyer in Sydney? Call us 24/7 to arrange a free consultation.

When are Police Prohibited from Conducting an RBT?

A police officer cannot do an RBT on you if:

  • There is a danger to your health as a result of injury you’ve sustained; or
  • At least two-hours have gone since you were last driving; or
  • You’ve reached your private property, including driveway; or
  • Police cannot prove that you were driving at the time.

Your Rights as a Driver When Pulled Over by Police for RBT in NSW?

Division 2, Schedule 3 Road Transport Act 2013 (NSW) allow police officers to stop a motorist for purposes of random breath testing on the driver.

The RBT requires a motorist to blow into a device which in turn will provide police with an indication of whether you have alcohol in your blood or breath.

If the RBT device indicates that you have alcohol in your blood or breath, the police are only then and on that basis allowed to arrest you without having to acquire a warrant.

After arresting you, police will be able to take you to the police station or an RBT station nearby in order to then get you to conduct a breath analysis.

The breath analysis is a machine that requires you to similarly blow into in order for the device to return an accurate reading of BAC in your blood or breath.

The reading that the breath analysis machine returns is then used in court as evidence of the extent of alcohol you had in your breath or blood at the time of driving. This is then looked upon by the courts as the extent you were intoxicated from alcohol, putting others and yourself at risk of harm on the road.

The BAC reading given by the breath analysis machine then results in police issuing you a ‘court attendance notice’ if it falls in the mid or high range.

Low-range BAC readings allow police to now issue on-the-spot fines without having to attend court.

If you refuse or even fail to provide police with an RBT, you can face a maximum penalty of $1,100 (there is no licence disqualification period for this).

After refusing or failing to provide police with an RBT, the police officer will be allowed to forcefully take you to the police station or any remote set up bus to administer the breath analysis.

If you fail to or refuse to provide a breath analysis to police, the maximum penalties include 18-months jail or $3,300 fine, or both, in addition to an automatic licence disqualification period of 3-years  (or minimum of 1-year) if it’s a first offence.

If it’s a second or subsequent offence, the maximum penalty is $5,500 fine or 2-years jail, or both, and an automatic license disqualification of 5-years (with the discretion to reduce this to 2-years).

Can you Avoid a Conviction for Drink Driving? Yes, you can but only if you can convince the Judge or Magistrate in court to sentence you with a Conditional Release Order non conviction or section 10 order.

For more information on drink driving laws, call our 24hr hotline to speak with our criminal lawyers from Sydney today.

About Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Leading Criminal Lawyers in Sydney, Delivering Exceptional Results in all Australian Criminal Courts.

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