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Drink driving is one of the most common causes of car accidents in Australia, and it is also a problem all over the world. Sydney lawyers can confirm with the number of traffic-related legal cases they handle every year. Random breath testing is a practice which helped in decreasing the incidents of alcohol-related traffic accidents. NSW police conduct around 5 million breath tests each year. The police have the authority to:

  • Stop drivers for random breath testing for alcohol.
  • Arrest drivers who are over the legal limit.
  • Conduct a sobriety test in some cases.
  • Conduct a breath test on any driver involved in a crash

Although random breath tests exist to ensure the safety of each citizen in New South Wales, some police officers abuse their power to illegally interrogate drivers under the pretence of a random breath test. Serious concerns about the misuse of this authority intensified because of the coronavirus lockdown. Lack of understanding of the newly imposed lockdown can lead to misconceptions that NSW police have the freedom to conduct activities in any way they want.

Sydney Lawyers Say: The Police Have Limits 

NSW residents are not new to news about illegal random breath testing. However, everyone should know or do what they can to spread awareness that the police have strictly defined limits to their authority. There is a limit as to what they can and cannot do.

For instance, in the R v Buddee case, the accused possessed a small mints tin, which contained 6.76 grams of methylamphetamine at an approximate purity of 80%; however, the evidence was obtained unlawfully. 

The police were acting with lawful intentions when they stopped the accused’s vehicle; however, their conduct became unlawful when they used the random breath test power with an ulterior purpose to conduct a criminal investigation. This action was not authorised at law; specifically, the Law Enforcement (Powers and Responsibilities) Act 2002 (“LEPRA”).

The coronavirus lockdown in Australia has made the citizens more anxious about the possibility of the police illegally stopping vehicles and interrogating the occupants under the guise of a Random Breath Test. The police may tell you that they are stopping you for a random breath test despite having the clear intention of questioning you about why you left your house.

The question here is whether this is an illegal use of the random breath test powers. Sydney lawyers would say, yes. Much like the R v Buddee case, even if the police have lawful intentions, stopping your vehicle and interrogating you under the disguise of RBT is an improper and illegal use of police powers.

Is There Really a Police Power to Stop Vehicles?

The truth is that the NSW police do not have a general power to stop vehicles for either questioning or interrogation. They also have no authority to stop a car for a license check. That is a common misconception that should be abolished. NSW residents are protected from the undue harassment and interference of police officers acting on a hunch.

However, there are a few circumstances wherein the police can stop a vehicle. The police can stop a car for the following:

  • Random breath test
  • An arrest under Section 99 of LEPRA

The police do not have the authority to stop any vehicle outside these two exempted purposes. The police are not allowed to stop your car to conduct an interrogation; doing so will result in an illegal stop.

About the Public Health Act

Why are the police disguising stops and interrogations as random breath tests? The coronavirus lockdown order is made under the Public Health Act— an act that has many limitations. The lockdown restrictions may be strict, but the Act gives police very few powers to enforce these restrictions. For instance, the Public Health Act does not provide any authority for the NSW police to stop vehicles and question the occupants about their decision to leave the house.

It is unclear if the government does not deem it necessary for the police to have the authority to stop vehicles or if this is an oversight. The lack of power does not mean that the police won’t find ways to stop vehicles anyway. This reason has to be considered as one of the reasons why NSW police officers have been disguising questioning and interrogations as random breath tests.

How Does the Coronavirus Relate to Illegal Random Breath Tests?

Ever since the implementation of the coronavirus lockdown, the police have fined hundreds of people who have allegedly breached the lockdown restrictions. Most of these fines were issued to drivers who were stopped by the police for RBT. 

The officer would ask the person questions while conducting the breath test– an action not supported by the law. However, if a police officer did stop a vehicle so they can conduct a random breath test and for that purpose only, but the occupants end up volunteering information, then that is not considered as an illegal stop or interrogation.

Keep in mind that it is not illegal for the police officers to ask questions per se, but demanding you to answer their inquiries is improper conduct. You have no legal obligation to answer any questions ask while they are conducting RBT.

If it is clear or established that the RBT is not the real reason why your vehicle was stopped and that the true purpose of stopping you is to interrogate you, then that is an illegal stop.

Sydney Lawyer Tips for Proving an Illegal Random Breath Test Stop

For your safety, you should record your interactions with the police officer that stopped your vehicle. Ensure that you have video material to review. It will also serve as evidence if any legal action is needed.

You should also ask the police officers about the stop, but keep in mind that being doubtful of an officer’s intentions is not an excuse to be rude. Be polite and friendly to avoid any conflicts. Here are some things that you should do:

  1. Inform the police officer that you are going to record the interaction with your phone. Keep in mind that it is not illegal to record interactions with a police officer; don’t let anyone tell you otherwise. Again, do not be rude about this as that may lead to more conflict than the RBT itself.
  2. Politely ask the officers to identify themselves. Ask for their name, rank and station.
  3. It is okay to provide them with your license if it is requested.
  4. Ask about why they stopped you— emphasis on not being rude.
  5. If they claim that it is for RBT, then let them know when you are ready.
  6. In case the officers ask about your movement or anything else that isn’t related to the test, then you may refuse to answer. Politely let them know that you want to exercise your right to silence.  
  7. Once the test is complete, ask the police if you may leave. In case that they won’t allow you, then politely asked for the reason you are being detained.
  8. Do not argue with the officers if they issue you a fine. Accept it, get a Sydney lawyer, and settle the issue in court.

You can determine a police officer’s real intention based on your interaction. For example, if they ask excessive and invasive questions, then chances are that they have ulterior motives behind the RBT. 

What to Do If Proven that the Police Conducted an Illegal Random Breath Test?

In case you have been fined by the police, but the evidence is obtained through illegal random breath testing– you may bring this detail up in court. If you can prove that the police conducted an unlawful random breath test, the court can dismiss the police evidence under Section 138 of the Evidence Act.

The exclusion of evidence due to an illegal random breath test will result in the dismissal of the case– which means that you don’t have to pay the fine. Depending on how inappropriately the police handled the situation, you can even sue the officer in question.

Regardless of whether improper police activity is common or not, it is a big deal. The law does not take the abuse of authority lightly. Personal liberty cannot be taken away without lawful authority. Rest assured, courts take illegal random breath tests seriously.


People need to fight for their rights. Illegal random breath tests are unacceptable; staying silent will not resolve the issue. Even with the coronavirus lockdown in play, the police have no reason or right to be invasive or to demand answers from you when they stop you for RBT. They do not have the authority to act outside their legal powers.

However, you must also keep in mind that there is a right way to handle an illegal random breath test. Violence should not be an option, and being rude can make things worse. Act civil and polite, if any improper police activity takes place, get in touch with a Sydney lawyer to help you work out a case.