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Aboriginal and Torres Strait Islander viewers are advised that this website contains the names and images of people who have passed
This is a RCIADIC recommendation
129
Evaluation of blood alcohol testing in custody
That the use of breath analysis equipment to test the blood alcohol levels at the time of reception of persons taken into custody be thoroughly evaluated by Police Services in consultation with Aboriginal Legal Services, Aboriginal Health Services, health departments and relevant agencies.
When Mum was at the charge counter, they knew she was intoxicated. They did not offer to breathalyse Mum, which would have revealed how dangerously intoxicated she really was, because they had never seen it done before. It wasn’t usual. Nevertheless, they knew she was at significant risk of falling. They knew that intoxicated people could deteriorate rapidly. They should have sought medical attention at that stage.
Aboriginal Justice Caucus Assessment
The intent of Recommendation 129 was for police services to thoroughly evaluate the use of breath analysis equipment to test blood alcohol levels at the time a person is taken into custody.
In line with Victoria Police’s own assessment, the Aboriginal Justice Caucus (AJC) determined that no action had been taken towards implementation of Recommendation 129 and therefore there was no evidence of implementation.
While this recommendation remains relevant the AJC recognise there may be fewer circumstances in which it could apply. The de-criminalisation of public drunkenness came into effect on 7 November 2023, and police in Victoria no longer have the power to detain people for that reason. However, Victoria Police may detain intoxicated people on other charges.
The original RCIADIC concerns about intoxication potentially masking symptoms of other serious health issues were reiterated by AJC members and remain as relevant as ever.
They can't tell if a person is intoxicated or how intoxicated they are just by talking to them. People suffering with diabetes may have lows and highs or appear incoherent at times. . . that is a big issue and a lot of people have been picked up over the years because of their diabetes condition and it has been taken as if they were intoxicated. . .there have been people who passed because of that.
Marion Hansen, AJC Co-chair and Chairperson, Southern Metropolitan RAJAC
The AJC considered that implementation of Recommendation 129 could potentially reduce incarceration as people with underlying medical issues masked by intoxication could get the medical help they need rather than being held in police cells. This aligns with the ongoing advocacy of Aboriginal families and communities for health rather than custodial responses to intoxication to prevent deaths in custody.
Priority for Further Work:
Moderate
Relevance and potential impact | |||||
|---|---|---|---|---|---|
Low (0-2) | Moderate (3-4) | High (5-6) | |||
Extent of action taken and evidence of outcomes | High (5-6) | ||||
Moderate (3-4) | |||||
Low (0-2) | |||||
Background
The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) found that alcohol was ‘a complicating factor’ in many of the deaths investigated. In several cases the deceased ‘whilst appearing to exhibit common symptoms of intoxication at the time of detention’ were in fact ‘suffering from some life-threatening condition (the most common being head injury), the symptoms of which were masked or mimicked by intoxication.’
The Final Report noted support amongst medical experts and others for the introduction of compulsory breath testing of persons taken into custody suspected of being under the influence of alcohol. While there was a possibility of other health issues being further obscured where a blood alcohol reading was high, the potential benefits of breath testing were considered greater. A low blood alcohol reading could clarify the urgency of other issues, and dangerously high blood alcohol levels could be identified and appropriate medical attention sought.
In concluding the discussion on the topic, Commissioner Johnston offered that:
Given the prominent role played by alcohol in the deaths investigated and the considerable risks found to be associated with the detention of intoxicated persons, I think that it is one which requires further investigation.
He noted that if breath testing were to be introduced, its value as an assessment aid must be emphasised, as the results would not provide ‘a conclusive determinant of the individual’s level of intoxication.’
Actions Taken Since Last Review
Victoria Police
In 2023 Victoria Police assessed recommendation 129 as not implemented, noting:
• There are no legislative provisions for Victoria Police to routinely test the breath/blood of individuals entering police custody.
• Following decriminalisation of public drunkenness, police no longer have powers to detain individuals who are intoxicated for that reason alone.
• For persons taken into custody for other matters, Victoria Police conducts a Detainee Risk Assessment upon entering custody. This assessment utilises the Coma scale and mandates that detainees experiencing medical emergencies be conveyed to hospital.
• The Custodial Health Service, including the Custodial Health Advice Line, provides medical care to all prisoners.
Impact
Outputs
None identified as Recommendation 129 was not implemented.
Outcomes
Recommendation 129 remains unimplemented.
Community Views
In this submission the children of Aunty Tany Day outline the ways in which police officers’ judgements may have been influenced by stereotypes to the detriment of the care provided to their mother:
When Mum was at the charge counter, they knew she was intoxicated. They did not offer to breathalyse Mum, which would have revealed how dangerously intoxicated she really was, because they had never seen it done before. It wasn’t usual. Nevertheless, they knew she was at significant risk of falling. They knew that intoxicated people could deteriorate rapidly. They should have sought medical attention at that stage.
The Day Family suggested several recommendations the Coroner could make to ensure other families were not faced with the death of a loved one in police custody. Those relevant to Recommendation 132 are:
That the Chief Commissioner of Police review the adequacy of legislation, the VPM, standard operating procedures and training/refresher modules regarding dealing with intoxicated persons to require that police officers:
• consider and utilise alternatives to custody;
• consider arrest as a last resort and consider all alternatives before arresting a person, particularly in cases of minor offences;
• undertake individual health and risk assessments to determine whether the person requires medical attention or accommodations prior to taking a person into custody;
• if the intoxicated person is an Aboriginal or Torres Strait Islander person, consider that they may have experiences of intergenerational trauma, be more likely to have more complex health needs and may experience being detained in custody in a particularly negative and traumatic way; and
• provide adequate care and supervision of persons taken into custody to maintain their health, safety and wellbeing.