Alcohol, riding & the law

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Alcohol, riding & the law

Postby find_bruce » Wed Apr 04, 2012 5:40 pm

A recent post got me thinking about alcohol, riding & the law. As that post was a request for advice, I thought I would start a more general thread on the topic.

Alcohol & riding
Having had the pleasure of trawling through expert reports etc on the effects of alcohol, I think it is not controversial to say that the consumption of alcohol has adverse effects, even at relatively low levels, on your judgement, particularly in relation to how impaired you are and risk taking, fine motor skills and balance. There is clear evidence that drinking impairs your driving skills and you are much more likely to be invovled in a fatal accident. As I understand it, exercise does not reduce your blood alchol content.

I suspect most will agree that these skills are important for a cyclist. But here's the thing - unlike car drivers, only a very small proportion of cyclists killed on our roads had any alcohol in their system at all. The Australian Transport Safety Bureau published a report in 2006 on deaths of cyclists due to road crashes. In Australia between 1996 & 2000 there were 222 cyclists killed in road crashes. The blood alcohol content was known for 129 of those cyclists and in nearly 90 per cent of those cases, BAC was found to be zero.

So either alcohol doesn't impair cycling skills, or, what I consider more likely, relatively few cyclists ride whilst drunk.

Alcohol & the law
Whilst 0.05 BAC and random breath testing are well understood for car drivers, the situation in relation to cyclists is much less well known. Previous discussions have involved all sorts of myths, half right statements & misunderstood concepts, with the occasional reasoned & accurate response. In order to promote more of the latter type discussion, I have looked at 3 questions in relation to each state and territory.

1 Is it an offence to ride a bicycle whilst under the influence of alcohol?
2 If so, what is the maximum penalty ?
3 Can you get breath tested on a bicycle?

I haven’t specifically looked at whether you can lose your driver’s licence for riding a bike whilst under the influence of alcohol. I was surprised by the range of the maximum penalty - $100 in WA to $5,500 in the ACT

I am happy to admit this is a difficult area & I have deliberately quoted the relevant acts, regulations and rules. If you think I have got it wrong, feel free to say so – if you are able to point to the relevant sections or case law, then so much the better.

Queensland
You must not ride a bike on a road while under the influence of liquor or a drug (section 79(7) Transport Operations (Road Use Management) Act 1995). This does not appear to extend to a road related area, such as a footpath or bike path. The maximum penalty is $4,400 or 9 months imprisonment.
But because you are not driving a motor vehicle or riding a motorbike, there is no offence in relation to a prescribed concentration of alcohol (subsections 79(1)-(6) Transport Operations (Road Use Management) Act 1995).
A police officer cannot require you to undergo a random breath test (subsections 80(2) and (2A) Transport Operations (Road Use Management) Act 1995), but if you are arrested for riding under the influence, the police officer may require you to undergo a breath test (subsection 80(8) Transport Operations (Road Use Management) Act 1995).

NSW
You must not ride a bike while under the influence of alcohol or any other drug (section 12 Road Transport (Safety and Traffic Management) Act 1999) The maximum penalty for a first offence is $2,200 or 9 months imprisonment, second (or subsequent) offence $3,300 or 12 months imprisonment.
But because you are not driving a motor vehicle, a police officer cannot require you to undergo a breath test, nor is there any prescribed concentration of alcohol (section 13 and section 9 Road Transport (Safety and Traffic Management) Act 1999)
You are required to give a blood sample if you are admitted to hospital as a result of a road accident (section 20 Road Transport (Safety and Traffic Management) Act 1999)

Victoria
Because you are not driving a motor vehicle, a police officer cannot require you to undergo a breath test, nor is there any prescribed concentration of alcohol (section 53 and section 49(1)(b) Road Safety Act 1986.
There is "an archaic and very poorly drafted offence" in the Summary Offences Act 1966 (Vic) (s.16(b)) that imposes a maximum penalty of $1,221.40 (in the 2011–12 financial year) or two months imprisonment if you are drunk in charge of a carriage (not including a motor vehicle) in a public place. "Carriage" is not defined but would likely include a bicycle.

Tasmania
you must not ride a bicycle while under the influence of alcohol or drugs to such an extent as to be incapable of having proper control of the bicycle (section 4 Road Safety (Alcohol And Drugs) Act 1970) The maximum penalty is $3,90 or 12 months imprisonment.
But because you are not driving a motor vehicle, a police officer cannot require you to undergo a random breath test, nor is there any prescribed concentration of alcohol (sections 7A & 6 Road Safety (Alcohol And Drugs) Act 1970

WA
you must not ride a bicycle on a road or path while under the influence of alcohol or drugs to such an extent as to be incapable of having proper control of the bicycle (WA reg 229) Penalty $100
But because you are not driving a motor vehicle, a police officer cannot require you to undergo a random breath test, nor is there any prescribed concentration of alcohol (sections 66 and 63-64AAA Road Traffic Act 1974)

SA
You must not ride a bike on a road or road-related area while under the influence of alcohol or any other drug so as to be incapable of exercising effective control of the vehicle. (sections 5A, 6A & 47 Road Traffic Act 1961) Penalty $500.
But because you are not driving a motor vehicle, a police officer cannot require you to undergo a random breath test, nor is there any prescribed concentration of alcohol (sections 47E and 47B Road Traffic Act 1961)
Required to present to a police officer for a test for alcohol or drugs after an accident in which a person is killed or injured (section 43 Road Traffic Act 1961).

ACT
You must not ride a bike on a road while under the influence of alcohol or any other drug (section 24A Road Transport (Alcohol And Drugs) Act 1977) This does not appear to extend to a road related area, such as a footpath or bike path. The maximum penalty is $5,500 or 6 months imprisonment.
But because you are not driving a motor vehicle, a police officer cannot require you to undergo a breath test, nor is there any prescribed concentration of alcohol (section 8 and section 19 Road Transport (Alcohol And Drugs) Act 1977)
You are required to give a blood sample if you are admitted to hospital as a result of a road accident (section 15AA Road Transport (Alcohol And Drugs) Act 1977)

NT
Because you are not driving a motor vehicle, a police officer cannot require you to undergo a random breath test, nor is there any prescribed concentration of alcohol (section 29AAB and sections 21-26 & 29AA Traffic Act)
A police officer may require you to undergo a breath test if you were involved in a crash and the officer has reasonable grounds to suspect you have alcohol in your breath or blood (subsection 29AAC(1)(b) Traffic Act).
I have been unable to find any offence in relation to riding a bicycle under the influence of alcohol
Last edited by find_bruce on Wed Apr 04, 2012 9:49 pm, edited 2 times in total.
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by BNA » Wed Apr 04, 2012 5:58 pm

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Re: Alcohol, riding & the law

Postby CommuRider » Wed Apr 04, 2012 5:58 pm

Looks good fb so thanks for collating all of this. For me, things do not seem concrete. "Must not be under the influence" hence under 0.05? And drugs too. Hmmmm.

I'd like to think being in control of a 20kg bike is less of a hazard than a drunk behind the wheel of a 2000kg car. However, so far I have not been accosted for drink riding but no doubt fatties Duncan and Barry can see this as a source of revenue raising at 10pm in the areas of Pyrmont, Surry Hills and Newtown. Then again if I saw a mobile RBT as a rider then I'll just get off the bike and walk with the bike as a ped. It isn't a crime to walk with one's bike no matter how inebriated n'est-ce pas?

The Mexicans seem to have a more civilised attitude to drink riding. Oh for the good old days of a trusty horse to take you back home from the pub!
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Re: Alcohol, riding & the law

Postby il padrone » Wed Apr 04, 2012 6:48 pm

find_bruce wrote:Victoria
Because you are not driving a motor vehicle, a police officer cannot require you to undergo a breath test, nor is there any prescribed concentration of alcohol (section 53 and section 49(1)(b) Road Safety Act 1986.
I have been unable to find any offence in relation to riding a bicycle under the influence of alcohol

http://www.lawhandbook.org.au/handbook/ ... h97Se53331
Fitzroy Legal Service wrote:Drunk riding

The relevant provisions of the RSA (i.e. Part 5) relating to drink driving refer to motor vehicles and, accordingly, do not apply to cyclists and as such demerit points are not an issue. However, there is still an archaic and very poorly drafted offence in the Summary Offences Act 1966 (Vic) (s.16(b)) that imposes a maximum penalty of 10 pu or two months imprisonment if you are drunk in charge of a carriage (not including a motor vehicle) in a public place. "Carriage" is not defined but would likely include a bicycle.


Dubious application I reckon, as this law was drafted to deal with the high risk problem of a carriage driver in the 19th century being drunk.... or a CUB beer wagon driver in 1966 :wink: . Far more hazardous to the general public than a single cyclist. Just my opinion.
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Re: Alcohol, riding & the law

Postby Oxford » Wed Apr 04, 2012 6:54 pm

fb, for Queensland, you can ride under the influence if not on the road and the police can do nothing, should you enter the road ie leave the pathway, only then are you bound by DUI laws.

if in the case that I assume recently sparked this thread, that rider had been on the footpath, then the police were basically powerless to DUI him. however they potentially could have got him under some other law I assume.
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Re: Alcohol, riding & the law

Postby find_bruce » Wed Apr 04, 2012 9:09 pm

Thanks for the comments

Oxford, you are right section 79(7) Transport Operations (Road Use Management) Act 1995 (Qld) is expressly limited to road and I can find no provision that extends the definition to a road related area, so footpath, shared path, bike path are probably all excluded. A car door lane is probably part of the road though.

Part of the Qld law makes sense to me - ie if you are arrested for riding under the influence, the Police can breath test you. What I find weird though is that there is no link back to the prescribed concentrations of alcohol. S79(7) requires the particular rider to be "under the influence" and there is and has been considerable academic debate around the extent to which an individual is impaired at a particular BAC - a small number of individuals will be impaired at less than 0.05, whilst a small number might not be impaired even at 0.08.

Of course it is all academic because the research also shows that a highly trained & skilled person is unable to reliably detect impairment until the person is highly impaired ie likely 0.10 or higher.

The point of introducing RBT was to (1) be mre reliable (2) convince drivers that they could not escape by dubious means (3) equate a level of BAC where there is a risk of impairment, even if the individual is not actally impaired.

As no state includes a prescribed concentration of alcohol, any test is not 0.05, but some vague measure of impairment.

Il padrone - that was what I was looking for. Personally I think the requirement that you be "drunk" will give the police far more diifficulties than the definition of a carriage - it is a much tougher test than being under the influence or impaired.
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Re: Alcohol, riding & the law

Postby Ross » Fri Apr 06, 2012 7:10 pm

Off topic a bit but I've always wondered why we need different laws for different states/territories. Surely drink-riding is just as bad in Qld as it is in Victoria or Tasmania or WA or wherever? The penalties should be the same too. $5500 in ACT is a bit steep, especially considering if you get convicted of DUI driving a car you will probably cop a fine of less than $500.
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Re: Alcohol, riding & the law

Postby yugyug » Wed Jul 09, 2014 12:05 pm

Alcohol and riding just came up again in another thread and so I thought I would re-aquaint myself with the law.

I'm wondering about South Australia in particular, where it says above that cyclists have no requirement to undergo a random breath test, but then says that one is required to present to a police officer for a test for alcohol (or drugs) in which a person is killed or injured.

The exact wording at 43.1.b says:
43—Duty to stop, give assistance and present to police where person killed or injured

(1) The driver of a vehicle involved in an accident in which a person is killed or injured must

(a) immediately after the accident—

(i) stop the vehicle; and

(ii) give all possible assistance; and

(b) not more than 90 minutes after the accident, present himself or herself to a police officer at the scene of the accident or at a police station for the purpose of providing particulars of the accident and submitting to any requirement to undergo a test relating to the presence of alcohol or a drug in his or her blood or oral fluid.
(my emphasis)

Does this mean that, in the case of an accident occasioning death or injury, because a cyclist is using a vehicle they must present to the police, but because they are not driving a motor vehicle (and are otherwise not required to undergo breath testing according to section 47E), they are not required to submit to blood or oral fluid testing when they present?

How would this change if the only person in the accident was the cyclist themself?
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Re: Alcohol, riding & the law

Postby casual_cyclist » Wed Jul 09, 2014 12:25 pm

yugyug wrote:How would this change if the only person in the accident was the cyclist themself?

I am not a lawyer but my laymans reading of that law is that if you are a cyclist and crash on the road and are injured you must present yourself to a police station within 90 minutes. Of course I could be wrong. Implications of not doing so might be relevant if you make an insurance claim and the insurance co. contacts the police and finds out you didn't follow the law. Pure speculation on my part. I have no idea if this has ever happened.
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Re: Alcohol, riding & the law

Postby find_bruce » Wed Jul 09, 2014 2:09 pm

Section 43 requires you to submit to "any requirement" - if there is no power, there is no requirement. This however would be a very brave decision. Because of the infamous Mr McGee, if you cause the death of someone and fail to comply with requirements under s43 of the Road Traffic Act the penalty is now set out in s 19AB of the Criminal Law Consolidation Act 1935 - is a maximum prison term of 15 years.

Yes a single vehicle accident would be covered by the definition of accident in s 5 so no change.

As far as cyclists the other way testing may arise is on admission to hospital. In SA if a person (over 14 years old) is admitted to hospital following a road accident involving a motor vehicle, a doctor must take a blood sample which is sent to the police for analysis - Road Traffic Act s 47I. ie if a cyclist is hit by a car, a blood sample will be taken from the cyclists. No motor vehicle, no requirement for a blood sample

Similar situation in NSW, haven't checked other states or territories.
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Re: Alcohol, riding & the law

Postby yugyug » Wed Jul 09, 2014 2:51 pm

find_bruce wrote:Section 43 requires you to submit to "any requirement" - if there is no power, there is no requirement. This however would be a very brave decision. Because of the infamous Mr McGee, if you cause the death of someone and fail to comply with requirements under s43 of the Road Traffic Act the penalty is now set out in s 19AB of the Criminal Law Consolidation Act 1935 - is a maximum prison term of 15 years.


Sorry I don't fully understand your answer: what do you mean when you say "if there is no power, there is no requirement"? Are you referring to police power? If so, is that limited by whats in the road rules? Or in other words, does "any requirement" refer to 'any requirement elsewhere in the road rules' or 'any requirement a police officer can find or make up on the spot'?

Or perhaps I should ask - do police have the powers to breath test / blood test from elsewhere, other than in the road rules? I suppose they must - I assume they test perpetrators of murder, assault etc for alcohol intoxication. If so, isn't that power limited by the reasonable suspicion that a crime has been committed?
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Re: Alcohol, riding & the law

Postby yugyug » Wed Jul 09, 2014 2:59 pm

casual_cyclist wrote:
yugyug wrote:How would this change if the only person in the accident was the cyclist themself?

I am not a lawyer but my laymans reading of that law is that if you are a cyclist and crash on the road and are injured you must present yourself to a police station within 90 minutes. Of course I could be wrong. Implications of not doing so might be relevant if you make an insurance claim and the insurance co. contacts the police and finds out you didn't follow the law. Pure speculation on my part. I have no idea if this has ever happened.


Maybe a wise speculation - can't be too careful when dealing with insurance companies :D
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Re: Alcohol, riding & the law

Postby find_bruce » Wed Jul 09, 2014 4:22 pm

find_bruce wrote:Section 43 requires you to submit to "any requirement" - if there is no power, there is no requirement. This however would be a very brave decision. Because of the infamous Mr McGee, if you cause the death of someone and fail to comply with requirements under s43 of the Road Traffic Act the penalty is now set out in s 19AB of the Criminal Law Consolidation Act 1935 - is a maximum prison term of 15 years.

yugyug wrote:Sorry I don't fully understand your answer: what do you mean when you say "if there is no power, there is no requirement"? Are you referring to police power? If so, is that limited by whats in the road rules? Or in other words, does "any requirement" refer to 'any requirement elsewhere in the road rules' or 'any requirement a police officer can find or make up on the spot'?

Or perhaps I should ask - do police have the powers to breath test / blood test from elsewhere, other than in the road rules? I suppose they must - I assume they test perpetrators of murder, assault etc for alcohol intoxication. If so, isn't that power limited by the reasonable suspicion that a crime has been committed?

Yes I am referring to Police power - they only have the power they are given by legislation etc see for example s 37 of the Road Traffic Act 1961 (SA). ie they must have a specific power, they cannot just make it up

As far as I am aware, the only police power to conduct a breath test is in relation to vehicles.
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Re: Alcohol, riding & the law

Postby outnabike » Wed Jul 09, 2014 4:41 pm

If you are in a gig it is,
"Occifer this is a bicycle newly invented with the wheels just placed the t'other way. The horse ? Sir I have never seen that animal in my life before, just the now....Hic" :)
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Re: Alcohol, riding & the law

Postby citywomble » Wed Jul 09, 2014 11:29 pm

My understanding is that any limitations relating to a RANDOM Breath Test, not being applicable to cyclists, would not be applicable for any other (not random) specific requirements.

Furthermore, relation to rule 43:

43—Duty to stop, give assistance and present to police where person killed or injured

(1) The driver of a vehicle involved in an accident in which a person is killed or injured must—

(a) immediately after the accident—

(i) stop the vehicle; and

(ii) give all possible assistance; and

(b) not more than 90 minutes after the accident, present himself or herself to a police officer at the scene of the accident or at a police station for the purpose of providing particulars of the accident and submitting to any requirement to undergo a test relating to the presence of alcohol or a drug in his or her blood or oral fluid.


Firstly, a cyclist is considered the 'driver' (rider) of a vehicle (bicycle) and there is no limitation to it only applying to a motor vehicle. So rule 43 applies in its entirety, and without limitation, to cyclists.

In my opinion, 'any requirement' effectively provides a police officer with the authority to 'require' a blood or oral test, and that is not limited by any RBT limitations. This is because it is not a random requirement, but one that is in response to a fatality (or serious injury that may eventually lead to death) which would have been the intent of the legislation.

I am not a lawyer and this constitutes a reasoned and informed opinion based on experience with interpreting laws and regulations.
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Re: Alcohol, riding & the law

Postby human909 » Thu Jul 10, 2014 12:36 am

citywomble wrote:In my opinion, 'any requirement' effectively provides a police officer with the authority to 'require' a blood or oral test, and that is not limited by any RBT limitations.

If it is not legislated then they can't 'require'.
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Re: Alcohol, riding & the law

Postby yugyug » Thu Jul 10, 2014 1:09 am

I'm still confused. I'd like to think that police powers are limited to what is specified - to interpret "any requirement" to allow anything the police want to do seems Orwellian.
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Re: Alcohol, riding & the law

Postby il padrone » Thu Jul 10, 2014 8:09 am

I would interpret it as "any requirement that is specified in the law" - thus a breath test (random or not) is not a requirement for a cyclist, only for a motorist. The Victorian rule is pretty clear - it applies to motor vehicle drivers, and can ocur at any time (or within 3 hours of when they are reasonably likely to have been a driver or passenger). There is no specification about application to operators of non-motor vehcles.

http://www.austlii.edu.au/au/legis/vic/ ... 5/s53.html
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Re: Alcohol, riding & the law

Postby bychosis » Thu Jul 10, 2014 8:32 am

Going on my vast knowledge of the law learned from such accurate places as TV reality shows about highway patrols my understanding is that while they cannot make you take a random breath test they can assess your sobriety using other methods, such as slurred speech, smell of alcohol on your breath, balance etc. to be subject to such assessment you would have to do something that would warrant the assessment eg run into someone/thing. One episode of said TV show met a motorcycle rider who got home before he could be RBT'd. He had stepped of his bike and entered his yard. The officer said he could not undertake an breath test, but using the officers judgement he was deemed to be riding while intoxicated, not ride with a prescribed concentration of alcohol.

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Re: Alcohol, riding & the law

Postby high_tea » Thu Jul 10, 2014 8:37 am

Thanks find_bruce. I'd like to mention another striking aspect of these laws: the evidential provisions. In Queensland, the result of a breath test administered in the proper way is taken to be conclusive evidence: Transport Operations (Road Use Management) Act 1995 (Qld) s80(15G). A defendant can negative this by showing that the equipment was defective or improperly operated: s80(15H).

So if they administer the test properly, they get a lot of help making their case in court. If not (e.g. they RBT a cyclist), the evidence would not automatically get thrown out (see Bunning v Cross), but nor would that presumption apply.

Dunno about other states.

Caveat lector, natch.
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