Cabinet has agreed that Section 103 of the Land Transport Act 1999 be amended as follows by inserting a new subsection to define the word “fail”.
Under the amendment, a person will fail to undergo a breath test or breath analysis if that person does not provide a specimen of breath which is sufficient to enable the test or the analysis to be carried out; and is provided in such a way as to enable the objective of the test or analysis to be satisfactorily achieved.
Cabinet based its decision on a submission by the Attorney – General, Mr Aiyaz Sayed – Khaiyum.
The Attorney – General said that currently, Section 103 of the Land Transport Act 1999 creates an offence for a person who fails or refuses to undergo a breath test or breath analysis when required by a police officer.
He said that when providing a specimen of breath, if a person blows into the breathalyzer but fails to provide a sufficient sample, it will read as “insufficient sample”.
He said that the Courts in Fiji have held that since the person has complied with the law in that they have neither failed nor refused to provide a breath specimen, the charges cannot be sustained.
The Attorney – General said that since an insufficient sample does not amount to “failing” to provide a specimen of breath, this has resulted in drivers, driving under the influence of alcohol, to purposefully provide an insufficient breath sample when blowing into the breathalyser.
He said that this lacuna in the Act, has resulted in the Office of the Director of Public Prosecutions recently withdrawing a number of charges.
He stated that given the trend of increase in drivers, driving under the influence of alcohol, over the Christmas period, there is an urgent need to amend the Act to allow the Office of the Director of Public Prosecutions to lay charges and have successful convictions.
-ENDS-