Road Safety Act 1986

This section applies to a person in respect of whom the Secretary has decided not to remove an alcohol interlock condition on an application made by him or her under section 50AAAB for the reason specified in subsection (2) or (2A), irrespective of whether there was any other reason.

The reason is that—

data on the usage of an approved alcohol interlock indicates an attempt to start a motor vehicle that failed because the alcohol interlock prevented the motor vehicle from being started as a result of it detecting alcohol; and

under the regulations the person is taken to have been responsible for that attempt; and

accordingly that attempt itself was sufficient for there not to be compliance with any prescribed alcohol interlock usage data requirements.

The reason is that—

data on the usage of an approved alcohol interlock indicates that on a direction being given, by message on the digital display on the alcohol interlock or by an audible message given by the alcohol interlock, to undertake an alcohol breath test after the motor vehicle was started there was a failure—

to provide a breath sample that contains no registrable alcohol using the alcohol interlock; or

to successfully undertake an alcohol breath test using the alcohol interlock; and

under the regulations, the person is taken to have been responsible for that failure; and

accordingly that failure was sufficient for there not to be compliance with any prescribed alcohol interlock usage data requirements.

Subject to subsection (4), the person may apply to the Magistrates' Court for a direction to the Secretary that the applicant was not responsible for the failed attempt referred to in subsection (2) or the failure of, or failure to undertake, the alcohol breath test referred to in subsection (2A), as the case may be.

An application to the Magistrates' Court under this section—

may be made on giving 28 days written notice of the application and of the venue of the Court at which it is to be heard to—

the Chief Commissioner of Police; and

the registrar at that venue of the Court; and

must be accompanied by data obtained from the approved alcohol interlock relating to the failed attempt, the failure of the alcohol breath test or the failure to take the alcohol breath test (as the case may be) that provides evidence (whether photographic or otherwise) as to identity of the person who was responsible for that failed attempt or failure of the test or failure to take the test.

The Magistrates' Court must not deal with, or determine, an application under this section unless it is satisfied that the relevant period referred to in section 31KA(4) or 31KB(4) or the specified period of an alcohol interlock condition direction given to the Secretary by the Magistrates' Court, as the case may be, when calculated in accordance with section 50AAAB(6), has elapsed.

On an application under this section the Magistrates' Court—

must hear any relevant evidence tendered by the applicant or the Chief Commissioner of Police; and

may either—

direct the Secretary to treat the applicant as not having been responsible for the failed attempt, the failure of the test or the failure to take the test, as the case may be; or

refuse to give such a direction.

The Magistrates' Court must cause particulars of any decision made by it on an application under this section to be sent immediately to the Secretary.

The decision of the Magistrates' Court on an application under this section is final and conclusive and must be given effect to by the Secretary.

Neither an application under this section nor the decision of the Magistrates' Court on the application operates as a stay of the alcohol interlock condition.

In this section—