Wolffe advocates fair use of breath tests

The introduction of roadside breath tests could face legal and constitutional hurdles.

Senior magistrate Juan Wolffe said the use of a breathalyser programme would need to be regulated.

He said: “If there is going to be roadside testing, there have got to be very strict criteria under which cars are going to be randomly selected.

“There will also have to be a very fair campaign. You have to have the records to say it is truly a random selection.

“The devil is in the details, and it’s all about the implementation, but at the front end there has to be a very clear educational piece to say what it is and a constant monitoring of the process, procedures and police operations to make sure it is fair.”

Mr Wolffe explained police need to have reasonable grounds to stop a motorist.

Introducing random stops could raise questions about discrimination unless they were handled with care.

He said: “It’s similar to the arguments that were made over stop and search. A lot of provisional arguments were made that it was being used to profile and being used to predominantly stop one demographic.

“The question would be, would this legislation do the exact same thing?”

Mr Wolffe added police would need to be able to prove stops are random, and the location of checkpoints would also have to be selected with care to avoid the appearance of discrimination.

He said: “Setting up on East Broadway, stopping every tenth car, might be fine, but if you go and set up on Court Street, where you have a large percentage of people of a certain racial background, people are going to start wondering why you are there and when you were last set up in Tucker’s Town.”

Mr Wolffe added that speed cameras could also cause legal problems as prosecutors would have to prove who was driving the vehicle at the time of the offence.

Mr Wolffe said: “You may have the car, but in Bermuda people borrow cars all the time. How do you say, from a legal standpoint, that a certain person was driving the car?”

He added legislative changes could be introduced to make the owner of the car responsible for the person driving the vehicle, but that could also cause problems.

He explained: “If your car was stolen, you can say it was stolen, but the burden now falls on you to say you were not driving.

“The law, under the Constitution, says you are innocent until proven guilty and it is the prosecution that has to prove the case against you. You should not at any time have to prove your innocence.

“It could happen. It has happened in other jurisdictions, but the legislation would have to be in place, and I would expect you would rightfully get some opposition from the Defence Bar, who might say their clients are being denied due process and are having to prove their innocence.”

Mr Wolffe said enforcing the 35km/h speed limit might also cause problems.

He added: “The difficulty I have, from a legal standpoint, is that although the speed limit is 35, people have a legitimate expectation that they won’t be stopped for 36.

“To some degree it would be unfair to the public to say we have been allowing you for all these years to go to 50, but now we are going to backtrack you almost 20km/h.

“It would be kind of unfair, and may even seem to be an injustice for us to do a complete reduction. I don’t think that’s something we should visit on the people.”

Mr Wolffe said that an increase in the legal speed limit to 50km/h would need strict enforcement to prevent drivers and riders travelling at even higher speeds.

He added: “We have to make sure if you raise it that the police and the courts are very clear that if you exceed the speed limit you will be ticketed and appropriately sentenced. We have to be very careful.”

Mr Wolffe said that traffic enforcement is key and that police could deter crime through high visibility.

He added: “If you see police parked outside of the bars on Front Street in the early morning, that’s a deterrent.

“That’s sending a very clear message, but you don’t see that as much any more. Just the presence of police officers can go a long way.

“Driving along Kindley Field Road in the morning, I know when a police officer is stopped there because no one is overtaking me.

“The mere presence of a police officer may deter some of the incidents.”