Local Court New South Wales Medium Neutral Citation: Thorpe v Roads and Maritime Services [2018] NSWLC 24 Hearing dates: 07 November 2018 Decision date: 07 November 2018 Jurisdiction: Criminal Before: Stewart LCM Decision: Appeal upheld. Decision of RMS set aside. Catchwords: APPLICATION - Appeal to Local Court against decision of RMS to extend interlock compliance period - extension of interlock licence condition – positive alcohol readings caused by prescribed medication – appealable decision – appeal upheld Legislation Cited: Road Transport Act 2013, ss 9, 211, 266, 267, 268 Category: Principal judgment Parties: Christopher Thorpe (Applicant) Road and Maritime Services (Respondent) Representation: Self-represented (Applicant) Mr C Wozniak (Respondent) File Number(s): 2018/287154 Judgment 1. Christopher Thorpe has appealed against a decision of Roads and Maritime Services (RMS) to vary the conditions of his interlock driver licence and extend his participation in the interlock program by an additional period of six months. 2. Mr Thorpe was convicted of mid-range drink driving in 2011 and again in 2016. The second offence was a subsequent offence within the meaning of section 9(2)(a)(i), Road Transport Act 2013 (the Act). Consequently, a mandatory interlock order was made per s 211 of the Act, with a minimum compliance period of 24 months for which the interlock device was to be utilised. 3. The RMS wrote to Mr Thorpe in September 2018 informing him of the extended participation in the program due to a recent assessment by Mr Thorpe's doctor regarding his fitness to drive. Numerous positive alcohol readings were recorded on the interlock device. It is a condition of an interlock licence that the driver has a zero alcohol reading at the time of driving. Mr Thorpe says that he tried to tell his doctor that his asthma pump was causing the readings on his interlock device. The letter informed Mr Thorpe that he could appeal against the decision. 4. Mr Thorpe filed an appeal within the time allowed by legislation (see ss 266, 267 and 268 of the Act). The grounds relied upon included a narrative to the effect that when he went to file the appeal, a police officer conducted a breath test which gave a reading of zero alcohol. The appellant opened a new Atrovent brand inhaler/puffer, took a breath from it, and blew into the interlock device, recording a reading of 0.093. Mr Thorpe said that he had not consumed alcohol for 2 years since his last offence. 5. The Court Registrar took a photo of the breath test reading, the Atrovent inhaler and the interlock reading. Those photos were attached to the appeal notice. 6. Mr Wozniak appears for the RMS. The RMS file was tendered, which contained a cumulative monthly summary report of all results when Mr Thorpe has used the interlock device. A list of Violation Summaries indicated 36 violations where a test sample recorded alcohol present in the sample during the period 9.11.16 and 29.9.18. 7. Mr Wozniak mentioned the matter and it was stood in the list. He subsequently informed the Court that during the short adjournment he observed the applicant take a puff of Atrovent, then attempt to start his car using the interlock device. A reading of 0.143 was recorded. 8. Later during the morning, he saw a police officer conduct a breath test on the applicant which gave a reading of 0.00 alcohol. Immediately thereafter, the applicant took a puff of Atrovent. A reading was then taken of 0.096. 9. Mr Thorpe gave evidence on the appeal. He confirmed the tests undertaken at the time of filing the appeal and the tests carried out this morning. He confirmed that he had not consumed alcohol today, and re-affirmed that he had not consumed alcohol since the last drink driving matter in 2016. I find Mr Thorpe to be an honest and reliable witness. 10. He was briefly cross examined by Mr Wozniak in relation to two positive alcohol readings recorded on 17 June 2018. Mr Thorpe said that he had been fishing. He recorded a zero reading on the interlock device. He had an asthma attack and took Atrovent. He still could not breathe properly and later had a further puff of Atrovent. This explains the two positive readings. 11. Mr Wozniak very fairly indicated that the Court could rely upon relevant data or other information collected by the interlock device as per r 86, Road Transport (Driver Licensing) Regulation 2017. He further conceded that the Court could uphold the appeal. 12. Mr Thorpe is a 51 year old Aboriginal man with extensive health issues, including chronic airway limitation and mobility issues which affect his ability to find work. His doctor prescribed Atrovent. 13. It is only through the willingness of police to accommodate the testing of Mr Thorpe's theory, that the real cause of his positive readings to alcohol has been established. The police should be complimented for their fairness and the way in which they have conducted themselves. I also acknowledge exemplary fairness in the way in which Mr Wozniak conducted the appeal. 14. I accept Mr Thorpe's evidence without reservation. I find beyond reasonable doubt that the use of the Atrovent puffer has resulted in positive alcohol readings recorded on the interlock device when in fact Mr Thorpe had not consumed alcohol by drinking. 15. I am satisfied on the balance of probabilities that it is appropriate to set aside the decision of the RMS and I uphold the appeal. Magistrate P Stewart Lake Cargelligo Local Court 7 November 2018 ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 July 2020