The question that is asked by most persons in the wake of the arrest of MP Collin Partap for allegedly failing to submit a breath specimen to the police last weekend is the obvious – is there one law for the elite and another for the ordinary citizen? This is a particularly poignant issue as we celebrate 50 years as an independent nation and with it an underlying assumption that we are no longer an immature undeveloped country.
According to media reports last week then minister Partap was stopped by three police officers who asked him to submit to a breathalyser test. He refused and was then taken to the Belmont Police Station. According to acting Commissioner of Police Williams he received a telephone call from Partap just after 5 a.m. informing him of a confrontation between himself and police officers about the use of swivel lights on the vehicle he was using. Williams went to the police station and Partap eventually took the test.
The unresolved issues of the swivel lights and whether there was ever any confrontation apart, what stands out to me is the claim by Williams that no technician was available outside Zen nightclub so Partap had to be taken to the police station to have the test done. This statement by the acting Commissioner suggests a simple breath test must be performed by a technician. This statement not only contradicts and could well defeat the purpose of the law but also may lead to confusion and concern as to how breath tests have been administered since the law has been in force.
Before even considering the legislation it must be asked whether the police officers who administered breath tests on the spot to Penal motorists last Saturday were trained technicians. It was also reported a Penal man was arrested and charged for refusing to submit to breath test during the police exercises. Further in no case reported over the last two years, where persons have been tested on the spot, has it been stated that the test were administered by or were required to be administered by a technician. Now in the case of the former minister we hear that he was taken from the scene because no technician was available for a breath test.
The "breathalyser" law which was passed in 2007, but came into effect some time after, makes it an offence to drive/be in charge of a motor vehicle if a person has consumed alcohol to an extent that the proportion in his breath of blood exceeds the prescribed limit. To ensure that this law could be enforced the Act permits a police constable to require a person to provide a breath specimen where the constable has reasonable cause to suspect (among other things) that a person driving/in charge of a motor vehicle on a road or public place has in his blood or breath alcohol exceeding the prescribed limit. Grounds for suspicion could logically include a person's gait, behaviour, smell and even the fact that he is carrying a bottle of liquor.
It is important to note that nowhere in the law is there any requirement that a breath test must be administered by a technician. Presumably this is because administering a breath test calls for no skill: an ordinary policeman (or indeed any person of ordinary intelligence) can certainly ask someone to breathe into the requisite kit and then check the reading.
The law envisages that this is what should occur when it states that the breath specimen should be provided "at or near the place where the requirement is made". In other words the specimen is to be provided more or less on the scene. The rationale is obvious: the breath test is a weeding out process. Those who are under the limit are sent on their way whereas those who are over the limit are arrested (section 70 B (6)).
Persons who are shown to have exceeded the limit in the initial test — the breath test — are then required to undergo a "breath analysis". This is the test that the law states must be administered by a trained police officer or as stated in the Act,"a constable authorised in that behalf by the Minister". Presumably this type of person is whom the Commissioner refers to as a "technician". A breath analysis is completely different from a breath test. It is done by a specific breath analysing machine and different protocols apply as compared to a breath test.
To repeat a breath test is different from a breath analysis and the former may be administered by any constable on the scene when he stops a suspected errant motorist.
Where a driver/person in charge of a vehicle refuses to submit to a breath test and there is cause to suspect his blood or breath alcohol exceeds the limit he may be arrested without warrant. If Partap was indeed arrested by the police it would have been under this law. If as the Commissioner Williams would have us believe he had to be tested by a "technician" and was taken for that purpose to the Belmont Police Station, then he was not arrested.
Whether there was an arrest or not, it appears to be uncontroverted that Partap initially refused to provide a breath test. This being the case I am at a loss to understand what the Commissioner could possibly mean when he says that the original refusal would have to be "investigated". Either you refuse or you did not. It is totally irrelevant if subsequently there is compliance and the Commissioner must know this. All those persons charged for refusal to provide a specimen, including the Penal man last week, - were they given a second or third opportunity to comply?
The law is the law and must be applied equally and evenly to all. Refusal to provide a breath test at the request of a constable is an offence. It is a simple as that.
• Dana S Seetahal is a
former independent senator