Queensland Police (Illegally?) Breath Testing Cyclist

[Scott_C]

The following press release from Far North Qld police indicates they conducted a roadside breath test of a cyclist:
https://mypolice.qld.gov.au/farnorth/20 ... ng-a-what/

One cyclist was detected on Ernest street around 10pm wearing a plush dolphin toy on his head as a helmet.

Officers intercepted the man in relation to not wearing an approved bicycle helmet.

During the course of the conversation about his inappropriate head wear, officers conducted a roadside breath test on the 25-year-old international male tourist where it will be alleged, he returned a reading of 0.182 per cent BAC.

He was issued with a notice to appear at the Innisfail Magistrates Court on December 18.

To the best of my knowledge police aren't authorised to require a cyclist to provide a roadside breath test as section 80 of the Transport Operations (Road Use Management) Act 1995 applies to "motor vehicles", not vehicles in general and therefore excludes cyclists.

Is there some other law authorising breath testing of cyclists or have Queensland police just published a public admission to violating the rights of a foreigner under colour of law?

[find_bruce]

You are correct that Qld Police don't appear to be able to lawfully require a cyclist etc to submit to a random breath test, BUT that does not prevent them from asking.

The power to back up that request arises from s 79(7) of the Transport Operations (Road Use Management) Act 1995 which makes it an offence to be in charge of a vehicle that is not a motor vehicle whilst under the influence of alcohol or drugs - no PCA. S 80(8)(a) then permits them to require a person to provide a breath sample after they have been arrested.

The conversation might go something like "Look mate, your breath smells of alcohol, you are unsteady on your feet, slurring your words and your eyes are glazed. We can arrest you for riding under the influence and take you back to the station & breath test you or you can blow into this device & save yourself the trouble"

There is still no PCA so over 0.05 does not mean riding "under the influence", but at 0.182, any pharmacologist will say the rider was under the influence of alcohol.

[human909]

I believe find_bruce has nailed it.

As one of the numerous people in my neighbourhood who ride home after a enjoyable night at a local establishment, I certainly have this in mind. The police can ask all they want. But unless they have a good reason to arrest me then they won't be checking my BAC sober or not.

(Vic only has drunk in public and drunk in charge of a 'carriage' laws. Neither are part of the normal road rules, or road safety act.)

[queequeg]

Aside from the fact that police have no authority to breath test you (as noted above), I am puzzled why this requires a visit to court.

Is riding under in the influence one of those offences that has not been legislated to be dealt with via a TIN? Since the worst the rider can get is a fine, I fail to see the point wasting the courts time.

[mikesbytes]

The guy was tanked so I'm not surprised that the gave him the breath test.

Some questions come to mind;
1. What is the penalty in QLD? I'm wondering if it fits the risk he imposed to others
2. What if the cycling was restricted to the footpath? Should there be more tolerance on the situation?

[RonK]

There is plenty of precedent for it in Qld, people have been booked for being drunk while riding bicycles, skateboards, motorised eskies and just recently a horse.

Qld law does not allow Police to conduct random breath tests on cyclists. But if they are investigating another offence (not wearing a helmet) they can most certainly request a breathe test if they suspect the cyclist is intoxicated.

[human909]

But if they are investigating another offence (not wearing a helmet) they can most certainly request a breathe test if they suspect the cyclist is intoxicated.

And the cyclist is within their rights to refuse.

[human909]

Some questions come to mind;
1. What is the penalty in QLD? I'm wondering if it fits the risk he imposed to others

Maximum penalty—40 penalty units or 9 months
imprisonment.

A maximum more than if he was driving a car drunk with no other aggravating circumstances.

[MichaelB]

What an idiot.

Everyone knows Dolphins are not safe.

They are part of the computer to work out the answer to the question of Life, the Universe and everything !!

What the hell was he thinking !!

This quote sums it all up : "On the planet Earth, man had always assumed that he was more intelligent than dolphins because he had achieved so much—the wheel, New York, wars and so on—whilst all the dolphins had ever done was muck about in the water having a good time"

[Ancientflatulence]

What an idiot.

Everyone knows Dolphins are not safe.

They are part of the computer to work out the answer to the question of Life, the Universe and everything !!

What the hell was he thinking !!

This quote sums it all up : "On the planet Earth, man had always assumed that he was more intelligent than dolphins because he had achieved so much—the wheel, New York, wars and so on—whilst all the dolphins had ever done was muck about in the water having a good time"

If he had used a hyper intelligent pan-dimensional being stuffed toy for a helmet he may have gotten away with it ............

[RonK]

But if they are investigating another offence (not wearing a helmet) they can most certainly request a breathe test if they suspect the cyclist is intoxicated.

And the cyclist is within their rights to refuse.

Sure, anyone can refuse - but refusing a breathe test is also an offence in Queensland.

[MichaelB]

If he had used a hyper intelligent pan-dimensional being stuffed toy for a helmet he may have gotten away with it ............

42 !

[JPB]

If he had used a hyper intelligent pan-dimensional being stuffed toy for a helmet he may have gotten away with it ............

42 !

But what was the question?

[Comedian]

There is plenty of precedent for it in Qld, people have been booked for being drunk while riding bicycles, skateboards, motorised eskies and just recently a horse.

Qld law does not allow Police to conduct random breath tests on cyclists. But if they are investigating another offence (not wearing a helmet) they can most certainly request a breathe test if they suspect the cyclist is intoxicated.

I think if they have "reasonable suspicion" they can test. It's the same law as allows them to book drunk horse riders. I believe the limit is .08.

RBT only applies to motor vehicle operators and there is case history of inadmissible RBT on a Townsville cyclist (I think) being thrown out.

Riding down the road with a stuffed toy on your head I would believe would make the test for reasonable suspicion.

[human909]

There is plenty of precedent for it in Qld, people have been booked for being drunk while riding bicycles, skateboards, motorised eskies and just recently a horse.

Qld law does not allow Police to conduct random breath tests on cyclists. But if they are investigating another offence (not wearing a helmet) they can most certainly request a breathe test if they suspect the cyclist is intoxicated.

I think if they have "reasonable suspicion" they can test.

Why do we play the "I think game" when the law is readily accessible? You first need to be arrested for them to compel you. Which is what find_bruce articulated.

Riding down the road with a stuffed toy on your head I would believe would make the test for reasonable suspicion.

Yes, it isn't a good start. Kids if you are going to ride while intoxicated, be smart about it.

(I'd guess that at least half the cyclists out after midnight in my area on a Friday or Saturday night wouldn't be under 0.05BAC. )

[Ancientflatulence]

Title of Topic ..... Cycling Safety and Advocacy

This Thread Content Summary ..... Ha Ha ... we can ride around p*ssed and the cops can't touch us ...... we have our rights!!!

Can anyone see a discrepancy here ......

[JPB]

Title of Topic ..... Cycling Safety and Advocacy

This Thread Content Summary ..... Ha Ha ... we can ride around p*ssed and the cops can't touch us ...... we have our rights!!!

Can anyone see a discrepancy here ......

Yes, I have been thinking similar.
We want to be recognised as legitimate road users so we must act like responsible road users and not hide behind fine details of law

[outnabike]

I reckon it is all about fine details of law.

I submit video proof of close passing together with a camera grid to show distances and get told ...."Year but that is not a calibrated camera" I mean the car is right on top of me against my elbow. "Nope cant help you , what law has he broken."

Then against me. "But look he wobbled on his bike"....Me going uphill at 8 kph. So the motorist gave a full roaring blast on the horn on a double road....That's all ok.

And we must be gentlemanly and just blow into their machine? I am not defending the drunken fool at all.

I am saying that I will give as little aid to the police as I can in them casting me as a drunk rider. I will have to be arrested before I give a breath test. I don't care if it is a road side test or a casual test.
I don't get that some here think a legal technicality is some sort of anti safety feature we might employ.

A motorist hits a cyclist and its, no lights, he came from nowhere, the sun was in my eyes, I was tired.etc. Then we are the first to complain that they get of on some unbelievable technicality.

I say let the police stay with in the same laws that we have to ride by.

[human909]

We want to be recognised as legitimate road users so we must act like responsible road users and not hide behind fine details of law

Cyclists ARE legitimate road users. So are pedestrians too, and they too have similar rights and responsibilities regarding intoxication here in VIC anyway. Drunk pedestrians are being injured on our roads and are injuring others at a pretty measurable rate. But I don't see calls for testing their BAC. This notion that you need equivalent or near equivalent laws between cyclists and motorists is absurd.

If a cyclist or pedestrian is drunk and is a clear danger to themselves or others then I am all for the police having the powers to intervene. They already do. If they aren't a danger, then what is the issue?

I would also point out that the risks of riding quiet 40kph back streets and bike paths is probably a fair bit less than riding on 80kph or 100kph roads. But I don't see people questioning that right on this forum. (I'm not about to either.)

I am saying that I will give as little aid to the police as I can in them casting me as a drunk rider. I will have to be arrested before I give a breath test. I don't care if it is a road side test or a casual test.

My approach exactly. Doesn't matter if I'm sober or tipsy.

[find_bruce]

In terms of safety the reason there is no great clamour to random breath test cyclists is that the % of drivers dui when involved in a fatal collision is >30%, while the % of cyclists dui is so low as to be statistically insignificant. Whilst there are plausible theories about this, inc >85% of collisions with cyclists being the drivers fault, I have not seen any scientific paper on the issue, because it’s a non issue

Breath testing is important at a bac <~0.12 because police cannot reliably identify it. At 0.18 any sober person can tell

[fat and old]

Drunk pedestrians are being injured on our roads and are injuring others at a pretty measurable rate. But I don't see calls for testing their BAC.

Maybe not breath testing, but local area blanket bans on alchohol consumption and/or possesion are quite common. The methods may be different, but the desired outcome is the same. Zero injuries attributable to alchohol. This is a good thing, not something that should be seen as a game to beat.

We want to be recognised as legitimate road users so we must act like responsible road users and not hide behind fine details of law

Cyclists ARE legitimate road users.

Why are you yelling at the poor bloke? He didn't say we are not legitimate road users. He pointed out the issues we have with being accepted as such by a majority (and vocal minority) of other road users. Surely you understand this? You seem very quick to point out others inability to understand your intent at times, yet make no allowances for yourself? That's not discussion, that's bullying someone who doesn't necessarily agree with your point of view. FWIW, I'd agree with JPB and others on this subject, in as much as I think it is ill informed to publicise the loopholes we can take advantage of as cyclists. Sure, take advantage all you want; I don't mind at all. But why broadcast it? It won't convince anyone that cyclists are a safer cohort on the roads regardless of the statistics you produce. It will just reinforce the idea that some cyclists are irresponsible fools who want their cake and to eat it too. You have often pointed out the unfairness of pro MHL'ers and sport cyclists impacting on your choice of transport, so claiming that others should not be affected by your actions won't hold water.

[London Boy]

There is plenty of precedent for it in Qld, people have been booked for being drunk while riding bicycles, skateboards, motorised eskies and just recently a horse.

Qld law does not allow Police to conduct random breath tests on cyclists. But if they are investigating another offence (not wearing a helmet) they can most certainly request a breathe test if they suspect the cyclist is intoxicated.

I think if they have "reasonable suspicion" they can test.

Why do we play the "I think game" when the law is readily accessible? You first need to be arrested for them to compel you. Which is what find_bruce articulated.

Because that's what people do? I'd be out of a job if they didn't.

But yes, the law is readily accessible, if by 'law' you mean 'legislation'. Judge-made law is harder to find, and sometimes even harder to interpret.

You also have to be a bit careful because sometimes even the legislation doesn't mean quite what you think it means.

[P!N20]

The conversation might go something like "Look mate, your breath smells of alcohol, you are unsteady on your feet, slurring your words and your eyes are glazed. We can arrest you for riding under the influence and take you back to the station & breath test you or you can blow into this device & save yourself the trouble"

I'm impressed they didn't mention the Dolphin.

[MichaelB]

Crikey, aren't there better things to get narky about ?

I mean to say, they guy was plastered and had a dolphin on his head. Who cares if 'technically' the breath test had to be done a certain way because of the laws.

[fat and old]

I’ve just read the police release linked....bit late yeah.

The dude is in Innisfail! That explains everything