Can a DUI be dropped if Police didn't follow procedure NSW?

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Can a DUI be dropped if Police didn't follow procedure NSW?

Postby Maglla25k » July 1st, 2012, 11:54 am

A very good friend of mine returned a positive roadside test (presumably) and was taken to the station for second test (0.14), she had her licence taken and released. I am asking on her behalf as she has no internet. In my opinion there appears to be a lack of procedure in the whole process. Are any of the following actions (or lack of) grounds to challenge the charges.

1. When first pulled over the officer stated that she was being pulled over because she failed to stop for a roadside RBT, when it was stated that there was no raodside RBT on that road that reason was abandoned.
2. When asked when her last drink was consumed, the answer given was 5 - 10 mins ago, she was immediately tested. No 15mins window ??
3.She was never informed of the reading of the roadside test.
4. Afterthe roadside test she was told "You are under arrest, get out of the car". No explanation as to why she was under arrest or mention of a positive result.
5.As soon as she was out of the vehicle she was instructed to stand against the police vehicle, remove her jumper and submit to a search (she obliged). The police then thoroughly searched the car. When asked why he responded "Searching for drugs". When asked why he would be doing that, he responded "I saw a bag". - No drugs, bags or any illegal substance, etc was found.
6.A paddy wagon was called to transport her back to the station.
7. She was put in a "cell" to wait for the breath test, after the breath test, she had a form put in front of her and asked to sign, no explanation as to what it was. Turned out to be a licence suspension receipt.
She was given a court appearance notice & test result certificate and told she could go home.
8. At no stage was/has she been told what the charges are, no "charge sheet" was issued.
9.I have read the Road Transport Act, The written statement referred to in Section 15 (3) was not issued *, but the certification referred to in Section 33 was, stating that the statement in S15(3) was issued. *Unless the printout from the second test is considered a written statement to satisfy S15(3).

I am no lawyer and really have no idea what can/can't be done here, but the lack of information is in my opinion, appalling.

Can anyone in "the know" please advise if any of the above points are/might be grounds to apply for the charges to be dropped?

Many Thanks.
Posts: 1
Joined: July 1st, 2012, 10:59 am

Re: Can a DUI be dropped if Police didn't follow procedure N

Postby NSW lawyer » July 2nd, 2012, 11:43 am

Thanks for this. Obviously a very interesting situation!

Before I start - the below advice does involve making a few assumptions on my part. The best advice I can give your friend is to give me (Andrew) a call on (02) 9261 4555 and I can talk to her and make sure I get all the details. Often something that seems inconsequential may be the most important detail of all.

Just briefly:

1. it is likely that she may not have seen the RBT, or may have turned off the road just before it, thereby arousing suspicion. But nothing turns on that.
2. That would mean that the roadside test was unreliable - but of course she is not being prosecuted for the roadside reading. The legislation permits arrest if it appears to the officer that she may be driving above the limit.
3. That is normal
4. Technically an officer is suppose to inform her of the reason for the arrest - but this deficiency is unlikely to make any substantive difference.
5. If the officer honestly had that suspicion then he was entitled to perform the search.
6. This is normal
7. This is normal. She had an opportunity to read it before signing
8. The Court Attendance Notice that she has been given has the charge written on it.
9. The s33 certificate that she has received is the statement specified in s15.

As I said, it would be a lot better if she could give me a call and we can work out what defence she may have


Andrew Tiedt | Criminal Lawyer | Armstrong Legal

T (02) 9261 4555
Level 5/127 York Street Sydney, NSW 2000
NSW lawyer
Posts: 18
Joined: August 24th, 2011, 11:35 am

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