Offence to Sell Certain Breath Analysing Instruments

Published Updated September 26, 2018 · Updated Updated September 8, 2020

It is an offence to sell a breath analysing instrument of a type which is specified in Australian Standard 3547 Breath Alcohol Testing Devices for Personal Use (the Standard), unless the instrument complies with the Standard.

Which court will the case be heard in?

As a summary offence, this charge is heard in the Magistrates’ Court.

Meaning of Offence to Sell Certain Breath Analysing Instruments

What is the legal definition of Offence to Sell Certain Breath Analysing Instruments?

The legal definition of Offence to Sell Certain Breath Analysing Instruments is:

“A person must not sell a breath analysing instrument of a type which is specified in Australian Standard 3547-Breath Alcohol Testing Devices for Personal Use, published by the Standards Association of Australia, as amended from time to time, unless the instrument complies with that Standard.”

Examples of the Offence to Sell Certain Breath Analysing Instruments

A person sells an Alcotest 7110 that does not comply with the Standard
A person sells an Alcotest 9510 AUS that does not comply with the Standard

Legislation

The relevant legislation for this offence is section 74A of the Road Safety Act 1986 (Vic) (the Act).

Elements of the offence

To prove this charge, the police must prove that:

A person sold a breath analysing instrument
The instrument was of a type which is specified in the Standard
The instrument does not comply with the Standard

Element 1: A person sold a breath analysing instrument
A breath analysing instrument is defined in the Act as:³

the apparatus known as the Alcotest 7110 to which a plate is attached on which there is written, inscribed or impressed the numbers “3530791” whether with or without other expressions or abbreviations of expressions, commas, full stops, hyphens or other punctuation marks and whether or not all or any of the numbers are boxed in; or

ab. the apparatus known as the Alcotest 9510 AUS to which a plate is attached on which there is written, inscribed or impressed the numbers “8320869” whether with or without other expressions or abbreviations of expressions, commas, full stops, hyphens or other punctuation marks and whether or not all or any of the numbers are boxed in; or

apparatus of a type approved for the purposes of section 55 by the Minister by notice published in the Government Gazette or for the purposes of any corresponding previous enactment by the Governor in Council by notice published in the Government Gazette for ascertainment by analysis of a person’s breath what concentration of alcohol is present in his or her breath.

A person must sell a device that fits the above description to satisfy the first element of the offence. If a person gives another person a breath analysing instrument without receiving anything in exchange, they will not be selling the instrument and will not satisfy the first element of the offence.

“Can they prove you sold someone a breath analysing instrument?”

Element 2: The instrument was of a type specified in the Standard
The breath analysing instrument as defined in the Act must be of a type specified in the Australian Standard 3547 Breath Alcohol Testing Devices for Personal Use (the Standard) to satisfy the second element of this offence.

The devices specified in the Standard are:⁴

Type 1 Single-use, disposable breath alcohol testing devices
Type 2 Portable electronic breath testing devices (sometimes known as hand held devices)
Type 3 Electronic breath alcohol testing devices designed for use in fixed installations
Type 4 Electronic breath alcohol testing devices such as those which are installed to control the usage of motor vehicles or other machinery (sometimes known as interlock devices)

Element 3: The instrument does not comply with the Standard
The breath analysing instrument must not comply with the Standard to satisfy the final element of this offence. The standard specifies requisite performance and testing requirements for Type 1, 2, 3 and 4 devices.⁵

_{[1] Road Safety Act 1986 (Vic) s 3

[2] Australian Standard 3547 Breath Alcohol Testing Devices for Personal Use, Standards Australia International Ltd (June 2000), 4.

[3] Australian Standard 3547 Breath Alcohol Testing Devices for Personal Use, Standards Australia International Ltd (June 2000), 6-16.}

Defences

Defences to this charge are ordinarily based on a factual dispute. These include:

The person accused of the offence did not sell the breath analysing instrument
The instrument is not specified in the Standard
The instrument complies with the Standard

Another common defence to this charge is honest and reasonable mistake.

Questions in cases like this

Did the person sell a breath analysing instrument?
Was the breath analysing instrument specified in the Standard?
Did the breath analysing instrument comply with the Standard?

As with any criminal offence, whether or not someone should plead guilty to this charge depends on the specific features of their case.

Maximum penalty for section 74A of the Road Safety Act 1986

The maximum penalty for (s74A of the Road Safety Act 1986) is 20 penalty units (a $3223.8 fine).³

The Department of Treasury and Finance reviews and updates the value of a penalty unit on 1 July each year.⁴ As such, the maximum fine for this offence is liable to change.

_{[3] Road Safety Act 1986 (Vic) s 74A
[4] http://www.justice.vic.gov.au/home/justice+system/fines+and+penalties/penalties+and+values/}