Police v Grosser  SASC 146
It was once the case that the police could not require a motorist to submit to a breath analysis unless it was under certain circumstances, such as the driver having been involved in a road accident or committing any kind of traffic offence. It is now the case that motorists can be required by a police officer to submit to a ‘random’ breath test and there is no pre-condition other than a person being the driver (or rider) of a motor vehicle on a road or road related area (such as a hotel car park).
If a motorist, having been lawfully required to submit to an alcotest or a breath analysis refuses to do so, then the penalty is not only a fine, but a mandatory minimum disqualification of their driver’s licence for 12 months. Mandatory penalties for driving offences may sometimes be reduced if the offence concerned is categorised as ‘trifling’. A ‘trifling’ offence is one that occurs so far outside of the usual typical circumstances of the offence that it is justified to reduce an otherwise mandatory penalty.
The defendant in this case was stopped in a regional area by police who thought that the motorbike he was riding might be stolen. When he was stopped the defendant refused to produce his licence and refused to supply his name and address. He was arrested for that refusal. He violently resisted that arrest and the police overcame that resistance by handcuffing him. At the police station, the defendant was directed to submit to an alcotest. He refused.
The defendant pleaded guilty to the four charges laid against him, including that of failing to submit to an alcotest. The magistrate concerned indicated that she was considering how to reduce the mandatory minimum 12 month licence disqualification. To this end she heard evidence from the defendant. It was to the effect that:
- He had not consumed alcohol on the day in question
- He had not consumed any alcohol since Christmas 2021
- He had not submitted to an alcotest because he was annoyed because he had been arrested and was angry at the way he had been treated by the police
The magistrate decided that the offence was ‘trifling” She reasoned that because the prosecution had not alleged that the police suspected the defendant had been drinking or under the influence of liquor or drugs, then the request to submit to an alcotest may therefore have been unnecessary. She accepted the defendant’s evidence that he drank alcohol only in moderation and only at Christmas and that he had been annoyed by the police actions. Despite a lengthy criminal history the defendant had not previously been convicted of any drink driving or drug driving offences. Because she had categorised the offence as ‘trifling’ the magistrate did not impose the mandatory penalty of 12 months licence disqualification, or any disqualification at all. The magistrate ordered his licence be reinstated by the lunch break. In effect, the defendant had served a disqualification of only 10 weeks.
The police appealed the decision of the magistrate to the Supreme Court. The court allowed the appeal, set aside the order of the magistrate and ordered that the defendant serve the mandatory 12 months driver’s licence disqualification.
The Supreme Court in its remarks observed, among other observations, that a deliberate breach of any law would rarely be described as trifling, except in the limited circumstances of an emergency or where there were humanitarian considerations. The court observed that the defendant had made a conscious and deliberate decision to flout the law because he felt aggrieved by the way he was treated by the police. The court observed that there were strong public policy considerations for why it should order that the defendant be disqualified for the mandatory period, in particular because the purpose of the offence of refusing an alcotest or breath analysis is to deter motorists from frustrating the purpose of breath testing by their refusal to comply. Finally, the court noted that the exercise of a power to require a motorist to undertake an alcotest or breath analysis does not require proof or belief that the motorist may be affected by alcohol or drugs.