Changes to Tasmania’s drink driving legislation have just cleared the state's Upper House. Some of the changes – there are roughly 71 pages of them – seem perfectly logical. For instance, there will now be zero-alcohol restrictions for drivers transporting dangerous goods, and there will be a ban on Tasmania Police using samples taken from drivers in their DNA database.
However, a few of the changes smack of possible over-reach:
Unlocking Your Car – What is "driving" a vehicle?
For many years, the definition of driving under Tasmanian law has required that the person be in charge or control of the vehicle, based on the surrounding circumstances: normally, sitting in a stationary car is not enough on its own.
Whether you are “driving” was judged in the particular circumstances of a case by the Magistrate hearing the matter. Allowing this power to Magistrates is not necessarily a bad thing and it allows some judgment and human understanding about what was occurring with that particular person, on that particular day.
Allowing this oversight, however, does not appear to be something the government likes. As said by Police Minister Rene Hidding in the second reading speech:
“…this concept has been the subject of a number of legal arguments relating to at what point a person is driving and at what point they become liable to a breath test or drug test (oral fluid test). These amendments ensure that drivers, police and the legal fraternity are clear on when a person is a driver.”
However, it appears that this will now include -
a. attempting to drive the vehicle;
b. “an act or omission – (i) done, or made, with the intention to drive; and (ii) that forms part of a series of events that, if it were not interrupted, would constitute the actual act of driving.”
All a bit hard to fathom? Let’s take an example: Say that you were seen by a police officer, after a night at the pub, unlocking your car door. From an outsider's point of view, it would look like you intended to drive, because you had your keys in your hand and were opening your car. As this would be part of a “series of events” that if not interrupted, would constitute driving / attempting to drive, it creates risk that you could be liable for fines and disqualification despite never putting your keys in the ignition, touching the steering wheel or touching the pedals. It would be a very long stretch to call this ‘driving’ under the everyday idea of what driving is, but it might be satisfied under the new changes.
Private Property – Not Anymore
The second is to lose any protection over whether the driving is on a public or private place. Driving on private property has not previously been a defence to drink-driving, despite what some may think. However, moving on to private property will be of no assistance with the new changes.
The Minister stated to parliament that:
For most of the driving offences, the driving must be in a public place. This becomes complicated when the offender after being asked to pull over, moves the vehicle onto private property (to stop their vehicle). This Bill provides police with the power to pursue, whether on private or public property, a person they believe is liable for a test, analysis or a medical examination.
However, the changes actually go far further than this.
As an example, changes to Driving Under the Influence (a more serious charge than ordinary drink-driving) include that the vehicle can be on private property. There is no requirement that the driving happened on a public road and then ended up on private property. The changes go far further than the second reading speech hints at, and would now seem to openly include driving that only happens on private property, such as “paddock bashing”.
Hand Over Your Keys – Or Else
It will become an offence to fail to hand over your keys if police have reasonable grounds to believe that you have been drink- or drug-driving. Police are permitted to drive the vehicle afterwards and, as long as they act in good faith, neither they nor the government will be liable for any damage caused to the vehicle.
A great deal of the changes will depend on Police practice as to how the new laws are implemented, and how they are interpreted by the Courts. If you’re interested have a read of the changes and the supporting materials yourself..
Joseph Petersen is a barrister and solicitor practising in criminal and family law in Northern Tasmania. This article is intended as information only and should not be used as legal advice. If you have a legal matter or driving charge, you should make an appointment to see a lawyer quickly.