Have you been charged with Fail to Stop at a Preliminary Breath Testing Station?
- This charge is specific to drink driving only.
- There are other charges in the Road Safety Act that relate to failing to obey a police direction, those sections are found under section 59 and section 64A of the Road Safety Act 1986 and also to a lesser extent at section 319AA of the Crimes Act.
- It might be the case that it is in your interests to attempt to resolve this charge on one of the ones above that lead to a lesser period of time off the road.
If you have been charged under s49(1)(d) of the Road Safety Act 1986 (RSA), then it must relate to a police officer making the request at a Preliminary Breath Testing (PBT) station as defined at section 54 of the RSA.
There are a number of issues to consider if you have been charged with this offence.
- Were you aware police were asking you to stop.
- Did you fail to obey the direction of a police officer to stop at a preliminary testing station?
- What were the circumstances?
It is an offence against the Road Safety Act 1986 (RSA) section 49(1)(d) refuse or fail to obey a request or signal to stop and remain stopped as per section 54(3) of the RSA.
Section 54(1) provides that a police officer may set up a preliminary testing station on or near a highway. The preliminary testing station consists of facilities necessary to undertake preliminary breath tests (blood alcohol analysis) and preliminary oral fluid tests (drug test) it must be obviously identified for such purposes. A police officer who is on duty and wearing a uniform at a preliminary testing station can request or signal any driver to stop their motor vehicle, and remain stopped, until indicated that the driver may proceed (section 54(3)).
The police do not need to show that the driver was aware that they directed them to stop or remain stationary, the question is whether or not the driver ought to have reasonably been aware of the request or signal. This imports a objective test in relation to this element.
Police officers on duty at a preliminary testing station must ensure that drivers are not detained at a preliminary testing station for any longer than is necessary (section 54(4)). Therefore, if a driver is required to remain at a preliminary testing station longer than necessary it may be defence to the charge if the person did not remain in place. ‘Necessary time’ is not defined but is likely to time required to complete preliminary analysis and time to process it if the person returns a test showing a concentration above the prescribed limit.
A driver must always remain at a testing station until a police officer has allowed you to leave. If the driver is concerned they have been detained for an unnecessary period of time, they should speak with the police officer that stopped them.
Please read below for more information relating to this charge.
The offence
Section 49(1)(d) of the Road Safety Act 1986.
The prosecution must that:
- The defendant was driving or in charge of a motor vehicle: and
- The defendant refused or failed to comply with a request or signal to stop a motor vehicle, and remain stopped, given under section 54(3).
The penalty
If found guilty of an Offence Involving Alcohol or Other Drugs: Refusing or failing to comply with a signal to stop at a preliminary testing station the maximum penalties are:
- For a first offence, a fine of 12 penalty units.
- For a second offence, a fine of 120 penalty units or imprisonment for a term of 12 months.
- For a third or subsequent offence, a fine of 180 penalty units or imprisonment for a term of 18 months.
Further, pursuant to section 50(1B), if a person is convicted or found guilty of an offence against section 49(1)(d) for refusing or failing to comply with a signal to stop at a preliminary testing station, the court must suspend that person’s driver licence or learner permit, and disqualify them from driving for a minimum period of:
- 2 years for a first offence.
- 4 years for any subsequent offence.
Questions to consider
- Do you have a defence?
- If you are pleading guilty, what can you do to minimise your sentence?
What to do next?
If you have been charged with refusing or failing to comply with a signal to stop at a preliminary testing station and if your driver’s licence is important to you, don’t go to court unrepresented. Get the right advice from traffic law specialists.
For the purposes of disqualification, section 50AA of the RSA deems driving offences for which you were convicted over 10 years ago may not to be considered a prior offence. This needs to be considered.
If you have been charged with refusing to undergo an assessment of drug impairment, a police officer may suspend your licence immediately, as per section 85 of the RSA. This would mean you cannot drive until your matter has been determined at court, but this suspension can be appealed while awaiting the court hearing for the alleged offence.
The courts take driving offences very seriously, to avoid severe penalties you need to be represented; Dribbin & Brown Lawyers are experienced in handling these types of matters. We regularly appear in court to represent people charged with driving offences.
The Legislation
Section 49 Offences involving alcohol or other drugs
(1) A person is guilty of an offence if he or she—
(d) refuses or fails to comply with a request or signal to stop a motor vehicle, and remain stopped, given under section 54(3); or
(3) A person who is guilty of an offence under paragraph (ba), (c), (ca), (d), (e) or (ea) of subsection (1), other than a supervising driver offence, is liable—
(a) in the case of a first offence, to a fine of not more than 12 penalty units; and
(b) in the case of a second offence, to a fine of not more than 120 penalty units or to imprisonment for a term of not more than 12 months; and
(c) in the case of any other subsequent offence, to a fine of not more than 180 penalty units or to imprisonment for a term of not more than 18 months.
(3AA) A person who is guilty of a supervising driver offence is liable to a fine of not more than 5 penalty units.
