Farrar v Commissioner of Police, New South Wales Police Service [2000] NSWADT 79

CITATION: Farrar v Commissioner of Police, New South Wales Police Service [2000] NSWADT 79 DIVISION: General Division APPLICANT Patricia Doreen Farrar PARTIES: RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 003120 HEARING DATES: 26/04/00 SUBMISSIONS CLOSED: 04/26/2000 DATE OF DECISION: 06/21/2000

BEFORE: Skinner PM - Judicial Member APPLICATION: Road Transport (General) Act - driver's licence suspension - Driver's licence suspension MATTER FOR DECISION: Principal matter LEGISLATION CITED : Road Transport (General) Act 1999 Coleman v Commissioner of Police [2000] NSWADT 15 CASES CITED: O'Kelly v Commissioner of Police (No 2) NSWADT 74 Arps v Commissioner of Police [2000] NSWADT 35 APPLICANT REPRESENTATION: Patricia Doreen Farrar RESPONDENT Commissioner of Police, New South Wales Police Service ORDERS: 1. The decision is remitted to the respondent for reconsideration.

Reasons for Decision 1 Under s 34 of the Road Transport (General) Act 1999 a police officer may suspend the driving licence of a person who has been charged by that or another police officer with refusing to submit to a breath analysis under s 15 of the Road Transport (Safety and Traffic Management) Act 1999, contrary to subs 15(4) of that Act. 2 The suspension is until the charge is heard and determined by a court or withdrawn – see subs 34(3) of the Road Transport (General) Act 1999. 3 The applicant, Ms Farrar, was driving a motor vehicle on the evening of 29 December 1999 on City West Link, Lilyfield. Police were conducting random breath testing on that road near the intersection of Catherine Street west bound and Ms Farrar was pulled over and asked to submit to a breath test on an alcometer. 4 She did so and returned a reading of 0.105, on the version in the Police Facts Sheet, and 0.104 on the applicant's version. The applicant was then arrested and conveyed to Balmain Police Station to enable a breath analysis to be carried out. At the police station she was required to submit to a breath analysis but upon three occasions failed to supply an adequate sample of her breath for the analysis to be conducted. 5 The applicant was then charged with a breach of subs 15(4) of the Road Transport (Safety and Traffic Management) Act 1999 and her driving licence was suspended on that day under s 34 of the Road Transport (General) Act 1999. 6 On 20 April 2000 Ms Farrar applied to this Tribunal under s 48 of the Road Transport (General) Act 1999 for a review of the decision to suspend her licence. On 26 April 2000 the matter came before me for hearing. 7 Material before me in the hearing included a copy of a letter from the applicant to the Commissioner of Police dated 14 February 2000 with attachments, which made submissions as to why the charge against her should be withdrawn. 8 That letter and attachments informed me: (a) of the chronic respiratory problems of the applicant, and that she had been an asthmatic for 35 years; (b) that she told the police when pulled over that she had drunk half a glass of wine only 7 minutes earlier; (c) that after using a Ventolin puffer she was able to provide a breath sample; (d) the applicant's version of events as to the analysis attempts at Balmain Police Station; (e) that she asked for a blood test; (f) that she had never been charged with an alcohol related offence and was a person of good character; (g) as to the applicant's employment and family circumstances; and (h) that she was held in high regard by her colleagues and treating doctor.