Can Police Breath Test Me On My Own Property?

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Random breath-testing is something we have come to accept as an inevitable part of driving, but where do police powers end?

Many people believe that if police saw you driving, they have the right to give you a breath test anywhere, but this is a myth.

Simply being on private property is not enough to get you out of being breath tested, but police are not allowed to breathalyse you on your own property (or property that you are renting). Schedule 3, clause 2(1)(e) of the Road Transport Act 2013 says that police cannot require a person to submit to a breath test, analysis or assessment ‘at the person’s home’.

What classifies as ‘the person’s home’?

Your driveway, and a dedicated parking space connected to your apartment will normally be classified as a part of your ‘home’. This was confirmed in the case of the DPP v Skewes (2002). The defendant in that case, Mr Skewes, was driving home when police signalled for him to pull over. He pulled into the driveway of his apartment building and stopped there.

Police approached him on foot and asked him to undergo a breath test. He was subsequently charged with low-range drink driving, but Skewes disputed the authority of the police to breathalyse him. When the case got to the Supreme Court, the judge found in favour of Skewes. The police could not prove that they had requested the breath test outside his home, so Skewes was acquitted of the charge. Not only that, but the prosecution was ordered to pay his legal costs.

What can I do about an illegal breath test?

It is also illegal for police to conduct a breath test more than two hours after you were driving.

If police have over-stepped their powers, your lawyer can write a letter to the Local Area Commander of police asking for the case to be dropped, and foreshadowing an application for costs in the event that the case is thrown out of court. If police insist on taking the case to court, your lawyer will apply to have it thrown out on the basis of illegality, and they may even be able to get legal costs awarded in your favour.

Can police charge me without a breath test?

Police do have a way to charge people even without a breath test. This is called a DUI charge, or driving under the influence.

Normally, drink driving charges will be based upon the level of alcohol in your system; for example, low range, mid range or high range. These are called PCA charges, or prescribed concentration of alcohol.

But with DUI charges, police do not have to prove that you were driving with a certain amount of alcohol in your system. However, they must prove that you were actually affected when you were driving – which is often difficult for them to prove beyond reasonable doubt.

A range of matters may be taken into account when deciding whether you were ‘under the influence’: including the way that you drove and your demeanour; including things like slurring, stumbling, bleary eyes and the smell of liquor on your breath. DUI charges are often used if there is a collision that was your fault, and police don’t get to you within two hours of the crash.

If I haven’t been drinking, why would I refuse a breath test?

Simply refusing a breath test when police are acting beyond their powers should never be taken as an indication of guilt. It would be highly unfair to imply that a person is guilty for asserting their legal rights in circumstances where police are trying to act illegally. Even if you are certain that your blood alcohol content is nowhere near the legal limit, you may still prefer not to submit to a breath test in order to protect your rights and deter police from acting illegally in the future.

Complying with police who make illegally requests only creates a precedent for them to abuse their powers again, including in more serious ways. Unscrupulous officers will often rely on the fact that people aren’t aware of their rights, and will take advantage of this by conducting illegal searches, illegal breath tests and engaging in other unlawful conduct.

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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers®, Sydney’s Leading Firm of Criminal & Traffic Defence Lawyers.

8 Comments

  1. Lina Sloan

    Was given a 110.00 ticket in my driveway because my light were not turned on. Then was told to give a breathalyzer. Was over the limit & then the policeman handcuffed me, took me to jail & impounded my car.

  2. Liz

    Please tell me if I can be charged with drink driving if I hadn’t been breathalised. After 2 hours of being in a car

  3. Sean turnbull

    I have been pulled up in my drive way for a breath test ! I was in my private property and gave a breath test and tested positive for low range ! Do I have any legal ground to stand on in fighting this case ! I was in my home driveway at the time ! Thankyou for any advice you may be able to give me! Regards sean

  4. Milo

    30minutes after , police called in because people reported someone doing a burn out . Police came did a breatho on there pouch and have taken them away and charged them with drink driving. Can that do this. This is in South Australia.

  5. Kirsty

    My boyfriend was driving one weekend and drove past the cops but he turnt into his driveway before they had put there lights on and turned in behind him and they were going to breath test him and forgot all about it when realised he had no p plates on so fines him for no p plates instead in our own driveway I didn’t think they could do this , and on the fine notice it says the location was on the street not at our own home, pain in the bum having to pay for something that was stupid ?? thanks in advance

  6. Koda norrid

    I was arressted on my private drive for dwi. I was not given a sobriety test on dite nor a breathalizer. I had been in bed 5 days to this. Sick with covid-19. As i took the breathalzer test at the station the officer told me i had the lungs of a 80 yr old man. I failed the breath test due to not being able to blow. I was never offered a blood test or any thing. Nor was i toldi was charged with dwi. Do i have any deffense here?

  7. russell henderson

    can I legally request my own doctor take any sampling when and if I’m taken to hospital for mandatory drug or alcohol testing

  8. Bill

    Police followed me in their vehicle onto private property and subsequently breath tested me then after checking my license and finding it suspended issued me with a court attendance notice. Were their actions illegal?

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