police_RBT_letter.html

Brian Gardner

President

The Laryngectomee Association of NSW

PC-Box 380

BELROSE NSW 2085

25 October, 2010 ourref: D/10/158374

Dear Mr Gardner,

Thank you for your recent correspondence on behalf of The Laryngectomee Association of NSW regarding the breath testing of Laryngectomees.

The issues you raised have been considered and expert advice was received.

As a consequence I have caused a "Statewide Email" to be circulated to every police officer outlining "Breath Test/Analysing of Laryngectomees". A copy is attached for your information. This also reinforces Commissioner's Notice 96/47.

Am confident that this action will address your concerns and I am happy to have been able to assist in this instance.

Yours Faithfully

Traffic Services Branch 11 Liberty Road

HUNTINGWOOD NSW 2148 Telephone 02 88821299 Facsimile 0288821217 ENet 64299 EFax64217 TTY 9211 3776 (Hearing/Speech impaired)

ABN 43 408 613 180

NSW POLICE FORCE 18OO 222 122

WWW.POLICE.NSW.GOV.AU/RECRUITMENT

Breath Testing and Analysis of Laryngectomees

The larynx (or Voice box') is an organ in the neck that assists with speech formation. In some cases, due to disease, cancer, or trauma, this organ is surgically removed (iaryngectomy). People who have had this operation ('laryngectomees') no longer breathe through their nose and mouth, rather through a surgically created stoma in their neck, and are known colloquially as 'neck breathers'. It should be readily apparent to police to identify laryngectomees due to their manner of talking, either by their use of a mechanical device or by using a valve in their neck.

A laryngectomee may experience difficulty providing a sample for a passive breath test. In addition, it would be practically impossible for such a person to undergo a direct breath test or a breath analysis.

Section 13(3) of the Road Transport (Safety and Traffic Management) Act 1999 provides some assistance:

It is a defence to a prosecution for an offence... (refuse/fail breath test)...if the defendant satisfies the court that the defendant was unable on medical grounds, at the time the defendant was required to do so, to undergo a breath test.

Police should use discretion and commonsense when dealing with such drivers, in order to avoid embarrassment to all parties. While not a bar to prosecution, arrests for failing a breath test would *not be appropriate in most cases, nor is taking a blood sample.

If a person is unable (on apparent medical grounds) to undergo a breath test and appears intoxicated, the provisions of Section 12 of the above Act (driving under the influence of alcohol), is available.

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