Citation: [2018] NSWLC 24
Court: Local Court
Date: 7 November 2018
Judge(s): Stewart LCM
Background
The appellant had two mid-range drink driving convictions, in 2011 and 2016. The second conviction triggered a mandatory interlock order under the Road Transport Act 2013, requiring him to use an interlock device for a minimum of 24 months. An interlock device is fitted to a vehicle and requires the driver to blow into it before the car will start; a zero alcohol reading is required.
Roads and Maritime Services (RMS) extended the appellant's interlock compliance period by six months after his device recorded numerous positive alcohol readings. The extension followed a medical assessment of his fitness to drive. The appellant contended that his prescribed asthma medication, an Atrovent brand inhaler, was responsible for the positive readings, not alcohol consumption.
The appellant filed a timely appeal in the Local Court. His grounds included a striking demonstration at the time of filing: a police-administered breath test returned zero alcohol, after which he used his Atrovent inhaler and immediately blew into the interlock device, which recorded a reading of 0.093.
Legal Issues
- Whether the RMS decision to extend the interlock compliance period by six months was an appealable decision under ss 266, 267 and 268 of the Road Transport Act 2013.
- Whether the positive alcohol readings recorded on the interlock device were caused by the appellant's use of the Atrovent inhaler rather than the consumption of alcohol.
- Whether the RMS extension decision should be set aside on appeal.
Decision
Appeal Jurisdiction: The appeal was properly filed within the time allowed by the legislation. Sections 266, 267 and 268 of the Road Transport Act 2013 provided the relevant appeal pathway, and the RMS decision to extend the interlock compliance period constituted an appealable decision (at [4]).
Cause of Positive Readings: The court accepted the appellant's evidence without reservation and found beyond reasonable doubt that the Atrovent puffer, not the consumption of alcohol, had produced the positive readings on the interlock device (at [14]). This conclusion was supported by demonstrations conducted both at the time of filing and on the morning of the hearing, each showing a zero reading on a police breath test immediately before the appellant used his inhaler, followed by a positive interlock reading after use (at [4], [7]-[8]). The explanation also accounted for two positive readings recorded on 17 June 2018, when the appellant had used Atrovent during a fishing trip after suffering an asthma attack (at [10]).
Reliability of Evidence: The Magistrate found the appellant to be an honest and reliable witness (at [9]). The RMS itself, through its counsel, conceded that the court could uphold the appeal (at [11]).
Outcome: The court was satisfied on the balance of probabilities that it was appropriate to set aside the RMS decision, and the appeal was upheld (at [15]).
Orders Made
- Appeal upheld.
- Decision of RMS set aside.
Key Takeaways
- Repeated positive alcohol readings on an interlock device do not necessarily indicate alcohol consumption; prescribed medication can produce false positives sufficient to satisfy the interlock's sensors.
- The Local Court found beyond reasonable doubt that the Atrovent inhaler, blown into the device immediately after use, caused the appellant's 36 recorded violations over roughly two years (at [6], [14]).
- Live demonstration evidence, captured in photographs taken by the Court Registrar and observed directly by counsel, was central to establishing the mechanism behind the false readings (at [5], [7]-[8]).
- Under the Road Transport Act 2013, an RMS decision to extend an interlock compliance period is an appealable decision, with the appeal heard in the Local Court (at [4]).
- In upholding the appeal, the Magistrate expressly commended both the police for accommodating the testing of the appellant's theory and RMS counsel for the fairness with which the hearing was conducted (at [13]).
Legislation and Cases Referenced
Legislation
- Road Transport Act 2013, s s 9, 211, 266, 267, 268
Cases
- Not stated