So, a rozza enters my home...

[Ocean1]

The doctrine of "fresh pursuit" is English and been around in the common law for decades.

Centuries.

Nautical roots, customs cutters chasing smugglers up estuaries etc.

[Ixion]

I'm afraid Parliament is way ahead of you Ix - the law specifically says that the breath/blood level at the time of test is deemed to be the level you were driving with. Even if its an hour afterwards and you've had copious nerve-calming libations. Indeed I've represented a guy who did a runner through some paddocks and when he got home, piled into the whiskey only to then open the door to officers who were still in pursuit of him. Dogs and all. Bugger. No defence.

If you are relying on Land Transport Act 1998 S77 (1) "it is to be conclusively presumed that the proportion of alcohol in the defendant's breath at the time of the alleged offence was the same as the proportion of alcohol in the defendant's breath indicated by the test", then I may distinguish.

"at the time of the alleged offence". In the OP's case there was no alleged offence, since there was no grounds upon which any reasonable allegation of offence could be made.

The case you cite is distinguishable, since that clearly involved fresh pursuit. Which , BTW, is , as you note, a term well established for many centuries, and lying at the heart of the posse comitatus (and thus imported into US law as well) .

If the law was , as you imply , that the police could breath test someone,(who is not driving) and on the basis of a positive test , accuse them of drink driving at some distant time in the past, then the result would be a total nonsense. The alleged offence occured two weeks ago. The police force their way into my home today and test me (I having not left the house all day) and find me over the limit. "You are over the limit today. That proves you were over the limit two weeks ago when I saw you driving". No court in this country would listen to such a claim. UK courts may be another matter , the concept of freedom has been well and truely eradicated there. There must be a connection (such as a pursuit) between the alleged offence and the presen test result.

[Patrick]

Drink-drive lawyer Chris Reid said ....
"Morally, he should probably have done it, but legally, he didn't have to," Mr Reid said. "There's no doubt if someone knocked on my door and asked me to do a breath test, I would tell them to go to hell."

Lawyer says morally he should have, but legally he didn't have to. Then goes on to say if the same happened to him, he would tell them to go to hell... Talk about double standards all right...

No. It is not clear at all.

Where is the difference between this case (where the police admit the man did not have to take a breath test) and Mr Tri Boy's,

Tri boys was, maybe, a minute after being seen. This one was who knows how long after. At a guess, a considerable time after...

it is clear that if you are driving on the road , you must take a breath test anytime a cop requires it.

It is *very* far from clear to me under what circumstances a cop may force his way into your home and demand you take a breath test.

It is very clear, as in the legislation.....

We have already seen (supra) that a passenger in a car can be charged with drink driving (even though he wasn't driving).

Usually reserved for car crashes, where all occupants deny driving. All occupants will be processed for drink driving.

And the site cops claim that you can be charged with drink driving in your lounge room .

Yes...

Even if you maybe haven't driving a vehicle in weeks ......

Now this is silly. No where did anyone say this.....

........ even if there is no proof that they have been driving at all, and , indeed, even if they can prove that they have NOT been driving.

Herein lies the legislation proviso...

And they want the public to grant them MORE powers? Piss off.

And there is also the bit where, if you have a crash and flee the scene... you can be breath tested soon after (how long exactly after, is determined by the court).

I have read with care both Mr Spudchucka's excerpt of the legislation and the legislation itself.

As I would interpret it (IANAL - but since in this matter police and lawyers seem unable to agree or provide a clear statement , we are needs be thrown back on our own resources) :

1) If a cop is pursuing someone he may enter private property and demand a breath test. So if the five-oh are after you with reds and blues, diving into your back door isn't going to get you off the hook. (Clause 1b "Is freshly pursuing that person.").

2) If a cop has reasonable grounds to believe that a person (emphasis mine) " or is, or has recently been, driving under the influence of drink or a drug, or both" (Clause 1aii)

Both these clauses are subject to the test of fact. A pursuit must be that : a pursuit. It is not enough for the cop to say "Oh, well , I drove up the same road as the suspect, but in the opposite direction, and 10 minutes later, when he was stopped and parked ". That's not a pursuit in my book.

And for 2) to apply, the cop must be able to identify "a person". If the police see me driving erratically and wildly, whilst swigging from my can of Bourbon, and they get a good look at me and see me go onto my house, they may follow me on in. But they need to be looking for a specific person. Not throw everybody and anybody in the vicinity into the net.The police are not able to say "Oh , we had a report that someone, dunno who, might have been drink driving (or might not). We don't know who the person was, or if they were drunk, so what we'll do is force our way into every house in the district and breath test everybody we find and if anyone fails, we've got our man".

Kind of... but how do you get a good look at someone, at night time, who is driving well ahead of you....?

If they all bail out of the car down a driveway and you pull up moments later, you will be looking at those there, as an example.... not the entire neighbourhood, neighbours house, whatever, unless a dog handler points you in the right direction, of course......

Ixion. Open the link on my post #177. The lawyer states very clearly that the police officer was within his rights to refuse the breath test. OK it's media but unless someone can show me an opposite opinion from a legal source I'll hold my view that a breath test can be refused in your private dwelling. Said officer was insistant that he was not going to be breath tested. He was not arrested for refusal. So I'm picking he knew his rights. Now I may be wrong in all of this but I have yet to hear of an officer backing down when they have the law to back up their insistance that Joe public carries out a police officers instructions.

And you are right they can not go on a fishingtrip.

Skyryder

True.

Logically what would be the point of a breath test administered 20 minutes after driving anyway ?" Oh, well, I did drive home after a couple of drinks at the bar. But at that point I believe I was well under the legal limit. And you can't prove otherwise. Since I got home, I've had another 16 double double whisky. So I will be well over the limit now. But I'm not driving now, am I.

The point? How about the hit and run driver, found at home soon after. The courts have held it to be reasonable to assume that the cops would come door knocking after a hit and run and if you were to flee the scene (coz you were pissed) and got home to "have a drink" (merely to hide the fact that you were already pissed when you crashed), then getting home to have a drink would not be a defence and your breath reading at the time of being located would be deemed as being the same as when the crash occurred. Time is the only factor, and the court will determine how long is reasonable afterwards.

I have personally dealt with two cases like this. One was two hours after the crash (he claimed to have taken a box of beers to the beach after the crash) and another was 5 hours (drove through a booze checkpoint almost hitting two cops, found parked up asleep in a drive with the keys in the ignition, seatbelted in, a pile of vomit on the grond next to the open drivers door.... oh, and a cops torch in the back seat - which was hurled at him by one of the cops who was narrowly missed....). Both went down for excess breath alcohol and other charges. These times were acceptable then. It is likely to be different now....

[Winston001]

If you are relying on Land Transport Act 1998 S77 (1) "it is to be conclusively presumed that the proportion of alcohol in the defendant's breath at the time of the alleged offence was the same as the proportion of alcohol in the defendant's breath indicated by the test", then I may distinguish.

"at the time of the alleged offence". In the OP's case there was no alleged offence, since there was no grounds upon which any reasonable allegation of offence could be made.

.......The alleged offence occured two weeks ago. The police force their way into my home today and test me....

Think we are at cross-purposes. I simply was responding to the suggestion that downing a few drinks the moment you reach the shelter of your home is a defence. It isn't.

Going back to Triboy at the start, he says the officer turned up pretty quickly. No judge would have a problem with that = fresh pursuit. Plus the implied licence to enter property which we all have.

However - once the officer learned Triboy was legitimately on the property - as opposed to doing a dive down the nearest driveway, then he has a problem. The single reason he has to believe drink/driving (hiding) is gone. If Triboy was obviously intoxicated then I suspect he'd have been arrested and it would be up to a judge to decide.

[Winston001]

Lawyer says morally he should have, but legally he didn't have to. Then goes on to say if the same happened to him, he would tell them to go to hell... Talk about double standards all right...

Yeah there are some embarrasing pricks out there. They say stuff like this to raise their profile and be seen as tough. In fact hmmm......this could be complained about to the Law Society. Must check the quote is accurate.

As for the senior officer, this is just a milder version of what Riccard did. No law broken but far below the professional standards expected of a police officer.

[Max Preload]

However - once the officer learned Triboy was legitimately on the property - as opposed to doing a dive down the nearest driveway, then he has a problem. The single reason he has to believe drink/driving (hiding) is gone.

Which is what I was saying here:

The fact he was clearly the occupant means the good cause doesn't have the foundation required - there is no longer good cause, hardly even a hunch - he was just turning into his own driveway, not simply attempting to avoid the checkpoint.

[spudchucka]

However - once the officer learned Triboy was legitimately on the property - as opposed to doing a dive down the nearest driveway, then he has a problem.

It makes no difference if there is fresh pursuit involved.

[Max Preload]

It makes no difference if there is fresh pursuit involved.

True. But in this case there was no signal to stop when he was driving on the road, so I would argue that's no more a fresh pursuit than turning up to your house 10 minutes after you when you've done a runner...

[Warr]

All this reminds me of some years ago I was dropping our baby sitter(cousins daughter) back home.
The route I normally took involved taking a right/hander off a road that had set up a breath test road block on.
Now I turned right before I got to the block and thought it would be "funny!" to swing right in a controlled but quick manner.
Well of course had other vehicles down this street to stop any villan attempting to evade their road block.
Now I know what I was doing, but was 300% certain I was guilty of evasion and proceeded to argue and tell me to my face that I was lying.
He was also highly pissed that I was completely sober.
Lets just say I did leave with just the slightest remorse that I hadnt been more deliberate in signaling my intention to take the turn
It could have ?? eliminated from raising his heart-rate and making an ass of himself.

[Patrick]

All this reminds me of some years ago I was dropping our baby sitter(cousins daughter) back home.
The route I normally took involved taking a right/hander off a road that had set up a breath test road block on.
Now I turned right before I got to the block and thought it would be "funny!" to swing right in a controlled but quick manner.
Well of course had other vehicles down this street to stop any villan attempting to evade their road block.
Now I know what I was doing, but was 300% certain I was guilty of evasion and proceeded to argue and tell me to my face that I was lying.
He was also highly pissed that I was completely sober.
Lets just say I did leave with just the slightest remorse that I hadnt been more deliberate in signaling my intention to take the turn
It could have ?? eliminated from raising his heart-rate and making an ass of himself.

Perhaps two to make asses of themselves?

[Patrick]

Yeah there are some embarrasing pricks out there. They say stuff like this to raise their profile and be seen as tough. In fact hmmm......this could be complained about to the Law Society. Must check the quote is accurate.

As for the senior officer, this is just a milder version of what Riccard did. No law broken but far below the professional standards expected of a police officer.

I might be wrong there... one lawyer saying one thing, another saying another.... will have a look too....

Riccard? What did he do?

[Patrick]

....Criminal lawyers say everyone has a right to act within their legal rights. But many members of the public are convicted after being breathalysed in their homes, either because they believed they had to follow police demands or because they felt they should front up to their wrongdoing.

.......

Drink-drive lawyer Chris Reid said that, although many members of the public had been convicted in similar circumstances, Mr Thomas was acting within the law.

"Morally, he should probably have done it, but legally, he didn't have to," Mr Reid said. "There's no doubt if someone knocked on my door and asked me to do a breath test, I would tell them to go to hell."

Lawyer Michael Bott said clients had been arrested for failing to provide a sample when police arrived at their house. "What concerns me is the double standard." But anyone who knew the law was entitled to apply it.

Here is what was said......

REID says legally he didn;t have to, and if someone did it to him, he would say bugger off...

BOTT claims the double standard, but misses the double standards in his own profession.

Hmmm.....

Damn lawyers.......

[Oscar]

Here is what was said......

REID says legally he didn;t have to, and if someone did it to him, he would say bugger off...

BOTT claims the double standard, but misses the double standards in his own profession.

Hmmm.....

Damn lawyers.......

Irrelevant - the public cares not a jot about the ethical standards of Lawyers.
It does care about the ethical standards and behaviour of its police.

[Patrick]

Irrelevant - the public cares not a jot about the ethical standards of Lawyers.
It does care about the ethical standards and behaviour of its police.

You forget... they also care about the moral standars, too........... apparently....

[spudchucka]

True. But in this case there was no signal to stop when he was driving on the road, so I would argue that's no more a fresh pursuit than turning up to your house 10 minutes after you when you've done a runner...

Lights activated are not necessarily required either, just keeping an eyeball on the subject would be sufficient. Equally, somebody that did a runner on foot from a vehicle that was stopped under the LTA and was tracked by a land shark back to an address could still be processed under the fresh pursuit requirements of section 119.