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Can I Be Breath Tested In My Own Driveway Or On Private Property?

Do I always have supply a breath or blood sample if a Police Officer asks me to?

The Road Transport Act 2013 gives Police powers to require you to submit to a breath test or provide a blood sample in certain situations when you are the driver of the vehicle. Generally speaking, if you are pulled over driving a vehicle, yes you do have to submit to the Police request. A failure to do so could result in a charge of “Refuse or Fail to provide breath analysis” which carries hefty penalties of fines, licence disqualification periods and even a term of imprisonment.

However, there are exceptions to this rule.

The Road Transport Act provide a short list of scenarios in which Police cannot require someone to subject to a test, analysis or sobriety assessment. For example:-

  • If you have been admitted to hospital, unless the doctor has been notified and does not object;
  • If it would be dangerous to your health or medical condition; or
  • At your home.

The rule stating the Police cannot require you to submit to a test inside your home is not common knowledge.

What is my “home”?

Obviously, it is clear that the four walls and ceiling inside which you: sleep; eat; and keep all your belongings, is your home.

But what about your driveway? Or your front yard? Where does your ‘home’ start and end? This is a question that has been considered a number of times in case law, in both lower and higher courts in NSW.

The general position of the law is that a certain place can be considered your “home” if there is some sort of a link, usually a physical one, with your house. For example:-

  • Your driveway is your home, and furthermore, the driveway to your block of units is your home;
  • Being in a car outside the front fence of your garden, or standing near the fence means you are not in your home;
  • A car park area (say, to an apartment block), is only considered your home if it is attached to the main building, or is by the people who live in the main building as part of their “ordinary living facilities”.

I didn’t know about this rule and I agreed to be tested, is there anything I can do?

The onus for the prosecution to prove beyond reasonable doubt that the requirement to undergo a breath test was not made at the defendant’s home, if the issue is raised at hearing.

In those circumstances, we can ask the Court to ‘throw out’ the result of the breath test. If the court agrees, then Police cannot justify their arrest and subsequent breath analysis without the first positive roadside result. The flow on effect of this is that there is no evidence before the Court substantiating a drink driving charge.

Ultimately, this is an issue relating to whether the Court should or should not admit the evidence of the breath test. Arguments on both sides will need to be presented to a Magistrate, and is subject to their determination on a case by case basis.

Written by John Sutton on October 9, 2017

John is the National Director of Criminal Law at Armstrong Legal. The experience John possesses, being a high quality mix of defence and prosecution skills, together with his team at Armstrong Legal, mean you can be certain of accurate, dependable and practical advice on how your matter can dealt with. View John's profile

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