Fears have been raised that the number of people who refuse breathalyser tests may increase after a landmark court case on Friday.

Chief Justice Austin Ward deemed that refusals to take the roadside test could not automatically be treated as harshly as drink driving cases, meaning the penalties could be less.

Magistrate Edward King came in for criticism on Friday when defence lawyer Juliana Jack won an appeal to quash a suspended three-month jail sentence imposed on her client.

It was the first time anyone had appealed against such a severe penalty for someone who had refused a breathalyser test, but later she said she hoped it would not be the last.

Mrs. Jack lodged the appeal on behalf of 19-year-old John Sutherland Hindes after he was fined $750 and given a three-month suspended sentence for two years for refusing the test. Hindes also received a 12-month disqualification from all vehicles, which unlike the prison sentence was mandatory.

Mrs. Jack said there was no evidence to suggest the teenager was over the drink drive limit, so therefore Mr. King had no right to impose a penalty suitable for a drink driving offence.

Her client had refused to take a breath test after crashing his car into a wall in Middle Road, Paget, in the early hours on August 13.

He told Police at the time that he had had only one drink, but was forced to swerve his car out of the way to avoid an oncoming car that had crossed into his path.

Police claimed they could smell alcohol on the teenager and believed his eyes were glazed.

Breath test fears However, he refused to take the breath test, and Police had no further evidence to substantiate the impaired driving claim. Mr. Hindes appeared in Magistrates' Court where he pleaded guilty to refusing the test, but not guilty to impaired driving.

However, outspoken magistrate Mr. King came down harshly on the defendant and said it was "his policy when people are involved in an accident where alcohol is involved to impose a prison sentence''.

But on Friday, Mrs. Jack told the Appeal Court that it was wrong for any magistrate to impose his own policies and that he should not automatically presume a defendant is over the limit just because he refused a test.

And she said cases of careless driving, even resulting in a death, had only been given fines, and sometimes a disqualification -- but never a jail term, suspended or otherwise.

However, Crown counsel Juan Wolffe, said there had to be a deterrent to stop people from refusing to have the breath test, otherwise he said people over the limit would be able to walk away with a relatively low penalty, despite driving while impaired.

And he said the road accident was the aggravating factor in this case and it was for the discretion of Mr. King how seriously he dealt with it. He said: "Magistrate Ed King has dealt with these sorts of offences for some time in this manner.

"A refusal should be treated in the same manner as an impairment or excess alcohol. It makes sense that an individual could use the refusal as an escape clause to get out of any heavier penalties.

"I will accept that other magistrates have dealt with these matters at the lower end of the (penalty) range, but this particular magistrate obviously feels these offences are rather serious.

"The sentence received by the appellant was proper and the magistrate gave due consideration to the circumstances in this case.'' However, after 15 minutes of deliberation, the Chief Justice deemed that Mr.

King had been wrong to impose his own policy when passing sentence and decided to quash the suspended jail term.

He said: "There is nothing extraordinary about the offence or the conduct of the offender. I do not accept that the accident was an aggravating factor.

"To refuse to take a breath test cannot be regarded as proof of impairment.

The appeal is allowed.'' During the case, the Chief Justice said accused people were fully entitled to take advantage of the law, even if there appeared to be loopholes and meant they could be given lesser penalties.

He said the legislatures had deliberately written the law in that way -- it was not an ambiguous mistake.

He added: "It's not the same offence. You cannot impute impairment because a person has refused. The law never said that and that is exactly what this magistrate did.

"An accused person has every right to use every statutory law he can. It's for the Department of Public Prosecutions to prove his guilt. The person charged has a legal right to say nothing.

"You cannot put the onus on an accused person because you don't like him. Ed King has started his own policy of imposing a suspended sentence whenever there is an accident when alcohol is believed to be involved. It's an irrational policy. That has to stop.

"An MP said in the House of Assembly that he did not agree that members should be drug tested -- that does not mean he uses drugs.'' And he said magistrates had a tariff sheet for sentencing and if they stepped outside the line, they had to give good reasons for it.

He added: "You cannot just step out of the line. It is not for the consistency of a judge, it's the consistency of the court and the body.

"Justice must be blind.'' And he said imposing suspended sentences for refusal was "in the range of this magistrate, but not in the range of this magistracy.'' After the judgment, Mrs. Jack said she was extremely pleased with the outcome, but said Mr. King should now be made to put an end to his policy.

But she said she also wanted the law changed because although many offences were spent after seven years, traffic jail-terms were for life. She added: "This has proved that consistent imposing of a wrong sentence does not make it right.

"My client pleaded guilty to refusal, showed remorse and was a first time offender. The sentence was unfair.

"I just hope it will put a stop to this policy where young people are having a prison record for the rest of their lives.

"I don't think this ruling will necessarily lead to people getting away with lesser penalties. Cases are individual. If there is evidence of impairment or excess alcohol, then the outcome could be different.'' Mr. Wolffe said he respected the Chief Justice's decision and would wait to see what happened.

He said: "My argument was that taking away the suspended sentence could lead to more people refusing a test, but we will not know until it happens. Time will tell.'' Acting Chief Inspector Charles Mooney, who is the National Traffic Co-ordinator, said he did not believe the ruling would have a great effect on how many people refused a breath test.

He said the Police took all the evidence they had and passed it to the prosecutors and the courts. He added: "It depends on the circumstances of the case. I don't really see that we need to be concerned at this stage. This is about sentencing and that is in the court's hands.'' But Michael Dunkley, Shadow Home Affairs Minister, thought differently. He said: "A fine is a slap on the wrist. There has to be a deterrent. I think more people will refuse to do the test.

"This is a situation that needs to be looked at. The penalties and the laws need to be reviewed.''