Queensland Police (Illegally?) Breath Testing Cyclist

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Lukeyboy
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Re: Queensland Police (Illegally?) Breath Testing Cyclist

Postby Lukeyboy » Fri Nov 30, 2018 8:34 pm

RonK wrote:
human909 wrote:
RonK wrote: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.


Yes. Police can breath test cyclists. RBT is exempt. No different than public intoxication. And yes if you get breath tested while on a bicycle and fail you will be treated the same if you were behind the wheel of a car. Its the only cycling offence that carries demerit points. Speeding only results in fines.

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Re: Queensland Police (Illegally?) Breath Testing Cyclist

Postby human909 » Fri Nov 30, 2018 11:50 pm

Lukeyboy wrote:Yes. Police can breath test cyclists. RBT is exempt. No different than public intoxication. And yes if you get breath tested while on a bicycle and fail you will be treated the same if you were behind the wheel of a car. Its the only cycling offence that carries demerit points. Speeding only results in fines.

Lukeboy. Why do you feel the need to make stuff up? Go read the relevant legislation to your state.

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Re: Queensland Police (Illegally?) Breath Testing Cyclist

Postby Usernoname » Sat Dec 01, 2018 12:46 pm

79 Vehicle offences involving liquor or other drugs
(7) Offence of driving etc. animals and other things while under the influence
Any person who, while under the influence of liquor or a drug, drives or is in charge of any horse or other animal on a road, or drives or is in charge of any vehicle (other than a motor vehicle) on a road, or attempts to put in motion any vehicle (other than a motor vehicle) on a road, is guilty of an offence.
Maximum penalty—40 penalty units or 9 months
imprisonment.

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Re: Queensland Police (Illegally?) Breath Testing Cyclist

Postby NASHIE » Sat Dec 01, 2018 1:56 pm

Usernoname wrote:79 Vehicle offences involving liquor or other drugs
(7) Offence of driving etc. animals and other things while under the influence
Any person who, while under the influence of liquor or a drug, drives or is in charge of any horse or other animal on a road, or drives or is in charge of any vehicle (other than a motor vehicle) on a road, or attempts to put in motion any vehicle (other than a motor vehicle) on a road, is guilty of an offence.
Maximum penalty—40 penalty units or 9 months
imprisonment.


:lol: I reckon some of our ancestors ended up on the boat guilty as charged.

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Re: Queensland Police (Illegally?) Breath Testing Cyclist

Postby CKinnard » Sat Dec 01, 2018 2:28 pm

https://www.qt.com.au/news/cyclists-war ... s/2440579/

"Insp Keith McDonald said police did not have the power to breathalyse cyclists but could arrest riders they suspected of being drunk.

"Once they have been arrested we can ask them to consent to having a breath test done," he said.

Anyone arrested for riding drunk cannot lose their driver's licence in Queensland. "


Keep in mind if you refuse to consent to a breath test, when you go before a judge, you may be subject to a higher fine.

human909
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Re: Queensland Police (Illegally?) Breath Testing Cyclist

Postby human909 » Sat Dec 01, 2018 3:02 pm

Exactly.

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Lukeyboy
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Re: Queensland Police (Illegally?) Breath Testing Cyclist

Postby Lukeyboy » Sat Dec 01, 2018 7:56 pm

Deleted my last post after I did some fact checking like you suggested and turns out its still right. Under queensland law page 157 in relation to under the influence https://www.legislation.qld.gov.au/view ... t-1995-009

(7) Offence of driving etc. animals and other things while
under the influence
Any person who, while under the influence of liquor or a
drug, drives or is in charge of any horse or other animal on a
road, or drives or is in charge of any vehicle (other than a
motor vehicle) on a road, or attempts to put in motion any
vehicle (other than a motor vehicle) on a road, is guilty of an
offence.
Maximum penalty—40 penalty units or 9 months
imprisonment.

From the QPS Operation Policy.
No authority exists to require a specimen of breath for a breath test when investigating an offence against s. 79(7):
‘Vehicle offences involving liquor or other drugs’ of the Transport Operations (Road Use Management) Act, i.e. being in
charge of a horse or bicycle etc. whilst under the influence of liquor or drugs. An officer may however require a specimen
of breath for analysis or blood for a laboratory test once a subject person has been arrested for such offence.

The part about losing your license must have changed as a few railway guys up here in Queensland have lost their drivers license for drink driving only to be caught and had a longer suspension imposed for riding drunk after leaving the same pub.

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Re: Queensland Police (Illegally?) Breath Testing Cyclist

Postby human909 » Sun Dec 02, 2018 2:04 am

Yep. The very 2nd post in thread. And the are distinctly differences between that and the requirements for motor vehicles.

Lukeyboy wrote:The part about losing your license must have changed as a few railway guys up here in Queensland have lost their drivers license for drink driving only to be caught and had a longer suspension imposed for riding drunk after leaving the same pub.

To the best of my knowledge it hasn't changed, but I'm happy to be proven incorrect.

That said your anecdote may well be correct it wouldn't be the first time that cyclists have been falsely charged under the wrong sections of legislation. And if it isn't fought then the charges can end up sticking.

(I've also heard similar anecdotes for Victoria but never seen the actual evidence. And as discussed the laws for Victoria has a much bigger gap than QLD.)

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Re: Queensland Police (Illegally?) Breath Testing Cyclist

Postby Lukeyboy » Sun Dec 02, 2018 2:29 pm

human909 wrote:Yep. The very 2nd post in thread. And the are distinctly differences between that and the requirements for motor vehicles.

Lukeyboy wrote:The part about losing your license must have changed as a few railway guys up here in Queensland have lost their drivers license for drink driving only to be caught and had a longer suspension imposed for riding drunk after leaving the same pub.

To the best of my knowledge it hasn't changed, but I'm happy to be proven incorrect.

That said your anecdote may well be correct it wouldn't be the first time that cyclists have been falsely charged under the wrong sections of legislation. And if it isn't fought then the charges can end up sticking.

(I've also heard similar anecdotes for Victoria but never seen the actual evidence. And as discussed the laws for Victoria has a much bigger gap than QLD.)


There's no legal requirement (unless arrested prior) but if the person consents then there's nothing preventing them from being charged citing the breathe test that they gave voluntary.

Also had a chat with a couple guys who work in this area. Seems there were numerous revisions and renumbering of the laws in Queensland when the 95 rules replaced the 1945 legislation and since then there have been a number of changes and reprints which potentially could have changed what would have happened in 1995 vs now. For example S79(1) is now referenced for license disqualification in drink driving cases where as if S79 or S79(7) was referenced that would then include cyclists and horse riders. Also prior convictions could play a part as there could be restrictions imposed by the court for that offence which would be a case by case (basically suspended offences or restricted licenses for disqualified drivers and their conditions imposed on them by the court) - legally it might not be much on its own but its enough to trigger the suspended part of the prior conviction or voids the restricted license.

An anecdote that is very correct. I can't remember the particulars of these blokes but I can see them losing their drivers license for drink driving. Getting a restricted license for a disqualified driver (you need a drivers license to operate machinery and operate vehicles even while on private property) and then getting caught drunk on a bicycle which would void their restricted license.

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Re: Queensland Police (Illegally?) Breath Testing Cyclist

Postby Comedian » Mon Dec 03, 2018 2:44 pm

Lukeyboy wrote:
human909 wrote:Yep. The very 2nd post in thread. And the are distinctly differences between that and the requirements for motor vehicles.

Lukeyboy wrote:The part about losing your license must have changed as a few railway guys up here in Queensland have lost their drivers license for drink driving only to be caught and had a longer suspension imposed for riding drunk after leaving the same pub.

To the best of my knowledge it hasn't changed, but I'm happy to be proven incorrect.

That said your anecdote may well be correct it wouldn't be the first time that cyclists have been falsely charged under the wrong sections of legislation. And if it isn't fought then the charges can end up sticking.

(I've also heard similar anecdotes for Victoria but never seen the actual evidence. And as discussed the laws for Victoria has a much bigger gap than QLD.)


There's no legal requirement (unless arrested prior) but if the person consents then there's nothing preventing them from being charged citing the breathe test that they gave voluntary.

Also had a chat with a couple guys who work in this area. Seems there were numerous revisions and renumbering of the laws in Queensland when the 95 rules replaced the 1945 legislation and since then there have been a number of changes and reprints which potentially could have changed what would have happened in 1995 vs now. For example S79(1) is now referenced for license disqualification in drink driving cases where as if S79 or S79(7) was referenced that would then include cyclists and horse riders. Also prior convictions could play a part as there could be restrictions imposed by the court for that offence which would be a case by case (basically suspended offences or restricted licenses for disqualified drivers and their conditions imposed on them by the court) - legally it might not be much on its own but its enough to trigger the suspended part of the prior conviction or voids the restricted license.

An anecdote that is very correct. I can't remember the particulars of these blokes but I can see them losing their drivers license for drink driving. Getting a restricted license for a disqualified driver (you need a drivers license to operate machinery and operate vehicles even while on private property) and then getting caught drunk on a bicycle which would void their restricted license.


Reading all this I'm confused.. can you loose your drivers licence for drunk riding?

What is clear is that drunk riding is probably ok as long as you can still ride well and don't bring any undue attention to yourself. Of course.. I'm sure every drink driver ever has thought the same thing. :mrgreen:

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Re: Queensland Police (Illegally?) Breath Testing Cyclist

Postby Lukeyboy » Mon Dec 03, 2018 3:42 pm

Depends on the circumstances. Basically if person 1 is on a restricted lisence for a disqualified driver (they’ve lost their full lisence and some jobs require a valid drivers lisence in which the courts can grant an exclusion - usually it has conditions which the court imposes such as where and times) any violation of S79 will void their restricted drivers lisence.

If person 2 doesn’t have a restricted lisence/suspended lisence they are immune from losing their driving lisence if they were drunk on a bike as the wording for lisence suspension for drink driving only applies to S79(1) which is motor vehicles. They still have to pay the fine but there is no driving suspension all because the legislation has (1) written down.

If the wording for lisence suspension changed from 79(1) to 79(7) - cyclists/horses - or just 79 that would include everyone.

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Re: Queensland Police (Illegally?) Breath Testing Cyclist

Postby mikesbytes » Mon Dec 03, 2018 5:27 pm

The arguments could be centered around to concepts;
1. Risk to yourself
2. Risk to others

Personally I'm seeing that point 2 is a lot more important than point 1 (but of course its debatable).
If the R-1 rule is broken, what happens to N+1?

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Re: Queensland Police (Illegally?) Breath Testing Cyclist

Postby human909 » Mon Dec 03, 2018 7:22 pm

mikesbytes wrote:The arguments could be centered around to concepts;
1. Risk to yourself
2. Risk to others

Personally I'm seeing that point 2 is a lot more important than point 1 (but of course its debatable).


Exactly. In a free society laws and regulations should largely be made regarding point 2. and laws regarding point 1. should be made only with VERY careful consideration and sensible rationales. Somehow Australia has half-forgotten that bit.

I say half-forgotten because there are uncountable ways I can endanger myself or other around me that are perfectly legal and unregulated.

It makes little sense to regulate when a problem doesn't exist. And the problem of drink cycling, well it pretty much is non existent. (Even in the example given, there was no evidence that there was a problem or even a reasonable chance of an issue.)
Last edited by human909 on Mon Dec 03, 2018 7:23 pm, edited 1 time in total.

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Re: Queensland Police (Illegally?) Breath Testing Cyclist

Postby fat and old » Mon Dec 03, 2018 7:23 pm

mikesbytes wrote:The arguments could be centered around to concepts;
1. Risk to yourself
2. Risk to others

Personally I'm seeing that point 2 is a lot more important than point 1 (but of course its debatable).


I agree absolutely there. If people want to get about drunk; driving, riding or walking; who cares what happens to them? They made their decision, live (or die) with it.

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Re: Queensland Police (Illegally?) Breath Testing Cyclist

Postby human909 » Mon Dec 03, 2018 7:31 pm

fat and old wrote:I agree absolutely there. If people want to get about drunk; driving, riding or walking; who cares what happens to them? They made their decision, live (or die) with it.

:lol:
I'm not sure if that is sarcastic or not. But as we are all acutely aware plenty of people care. But also that is how our mostly world works, even despite our best nanning attempts. I don't have police checking up on my safe ladder use or how I use my chainsaw. I don't have police breath testing me 100m up a cliff face while rock-climbing.

Risk to yourself is still extremely good at self regulating (young males less so). Risk to others, not so much.

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Re: Queensland Police (Illegally?) Breath Testing Cyclist

Postby fat and old » Tue Dec 04, 2018 4:18 pm

errrr…..no, no sarcy here. I mean it. If you're plastered and get out and about without any safeguards then it sucks to be you. I think you need to think about what I'm saying......you wouldn't readily agree to it normally :) Look, I'd hope that the world would provide enough caring people around to enable some of us to roll drunkenly through life without a care in the world without consequences. If not however, then tough. You brought it upon yourself. Live and learn. And if your drunken antics impact negatively on others, then eff you. Die.

Seasons Greetings btw :D

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Re: Queensland Police (Illegally?) Breath Testing Cyclist

Postby ColinOldnCranky » Fri Dec 07, 2018 5:38 am

I would have thought that all states had random breath testing by now. Apparently not.

Regardless, before RBT was legal in WA they could still require (not just request) a breath test with reason, such as the smell of breath, slurred speech etc. By carrying out random vehicle inspections not really aimed at vehicle inspections (which apparently were legal) the WA Police in effect did do RBT.

That would suggest that the Qld police action was legal even if RBT is not (as others have suggested).

Maybe the rider who is the subject of the article should ride a unicycle instead. :lol: I can ride home after a drink or three just as legally as I can walk. I can ride on smooth surfaces with enough alcohol in my system to know that I am impaired. However it is an offense (in WA) for me to ride on the road after dark, and I value my life anyway, so I keep to the paths after a few drinks.
Unchain yourself-Ride a unicycle
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