drink driving

Fail to comply with signal to stop 49(1)(d)

Drink Driving Failure To Stop

The offence of refusing or failing to comply with a request to stop is found in s 49(1)(d) of the Road Safety Act 1986 (RSA).

49(1)     A person is guilty of an offence if he or she—

(d)     refuses or fails to comply with a request or signal to stop a motor vehicle, and remain stopped, given under section 54(3)…

Section 54 provides that a police officer may set up a preliminary testing station on or near a highway (e.g. a booze bus). A police officer at a preliminary testing station may request or signal any driver to stop their motor vehicle at the preliminary testing station, and remain stopped, until indicating the driver may proceed (s 54(3)).

Police officers however, must ensure that drivers are not detained at a preliminary testing station for any longer than is necessary (s 54(4)).

Drink Driving Penalty: Fail to comply with signal to stop

The penalties for refusing or failing to comply with a signal to stop at a preliminary testing station are set out in s 49(3) of the RSA:

  • (a) In the case of a first offence, a maximum fine of 12 penalty units.
  • (b) In the case of a second offence, a maximum fine of 120 penalty units or imprisonment for a maximum 12 months.
  • (c) In the case of a third or subsequent offence, a maximum fine of 180 penalty units or imprisonment for a maximum of 18 months.

Drink Driving Licence suspension:

Pursuant to s 50(1B), if a person is convicted or found guilty of an offence against s 49(1)(d) for refusing or failing to stop at a preliminary testing station when requested to do so, the court must cancel that person’s driver licence or learner permit, and disqualify them from driving for a minimum period of:

  • In the case of a first offence, 2 years.
  • In the case of a subsequent offence, 4 years.

The penalties and disqualification periods for failing or refusing to stop at a preliminary testing station when requested or signaled to do so are considerable. Even for a first offence, the minimum mandatory disqualification period is two years off the road.

If you have previously been convicted or found guilty of a drink driving or  a drug driving offence, this will count as a prior offence for the purposes of s 49(1)(d) It does not matter whether or not you stopped at the preliminary testing station at the time of your prior offence (see s 48(2)). However, a prior offence may not be considered where the matter was resolved more than 10 years prior to your current offence (see s 50AA). This may mean you are liable to the lower mandatory minimum disqualification period, however a Magistrate may still impose more than the minimum disqualification period.

Whether this is your first, second, or any subsequent drink or drug driving offence, you should consult with an experienced criminal defence solicitor.

Drink Driving Elements:

It is not necessary for the police to show that you saw their signal or request to stop or remain stopped at a preliminary testing station. Your statement that you did not see the signal may not be a defence to the charge. The question is simply whether you ought reasonably to have seen the request or signal, not whether you actually did or did not. (see Coysh v Elliott).

Drink Driving Defences:

A defence to a charge for failing or refusing to remain stopped at a preliminary testing station when signalled to do so may exist if you have been detained for longer than is necessary. The RSA does not define a ‘necessary time’, but it is likely to be any amount of time necessary for the police to conduct the preliminary testing. This includes additional time if you test positive to a preliminary breath analysis or drug test.

You should always remain at a testing station until a police officer has allowed you to leave. If you think you have been detained for an unnecessarily long time, you should speak with the police officer who has stopped you. If you can show that you were detained for an unnecessarily long time, you should discuss this with your traffic law expert who may be able to provide you with further advice.

Get in contact:

If you have been charged with fail to comply with a signal to stop, or failing to remain at a preliminary testing station, you should contact an expert criminal defence lawyer as soon as possible. The penalties and disqualification periods for the offence are significant, and an experienced traffic lawyer may be able to help you avoid any unnecessary time spent off the road, and any excessive fines you could be facing.

 

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