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This article was written by Sally Crosswell

Sally Crosswell has a Bachelor of Laws (Hons), a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.

Breath Tests On Private Property


The blood alcohol limit for all fully licensed drivers in Australia is 0.05, and for other drivers, it is zero. Every state and territory conducts random breath testing, with slight differences in where and when this is permitted, and the penalties for refusing a breath test. In most states and territories, police can conduct a breath test on private property in certain circumstances.

New South Wales

The Road Transport Act 2013 sets out the circumstances in which testing is permitted. It states a person cannot be tested at their home, which includes the driveway and any dedicated parking space. However, a person can still be charged with driving under the influence (DUI). To prosecute a DUI charge, police must prove the person was affected when driving, which is often difficult to prove beyond a reasonable doubt. Police can rely on evidence of the manner of the person’s driving and the person’s demeanour, such as whether they were stumbling, had slurred speech, or smelled of alcohol.

Australian Capital Territory

The Road Transport (Alcohol and Drugs) Act 1977 permits police to enter any premises, including a home, using as much force as necessary to conduct a breath test if they reasonably suspect a person:

  • was the driver of a vehicle involved in an accident;
  • was driving and failed to stop when requested by police;
  • was driving while over the blood-alcohol limit or under the influence of alcohol.

Victoria

The Road Safety Act 1986 allows police to breath test on private property by virtue of making it illegal to refuse a breath test at any time, no matter where a person is. The request can be made if the person:

  • is driving;
  • is driving a vehicle that has failed to stop when directed by police;
  • is believed to have been driving in the 3 hours prior to the request;
  • is believed to have been driving a vehicle that was involved in an accident.

South Australia

The Road Traffic Act 1961 allows police to conduct a breath test on private property. The test request can be made anywhere and at any time if the person:

  • is driving;
  • attempting to drive;
  • has recently driven;
  • is acting as a driver trainer;
  • is believed to have been driving a vehicle that was involved in an accident;
  • is committing a driving offence;
  • is driving in a way that suggests their driving ability is impaired.

The test must be done within 8 hours of the driving, and the driver must be advised of the consequences of not providing a sample and of the option to provide a blood sample instead.

Western Australia

The Road Traffic Act 1974 allows police to conduct a breath test on private property. Police can require the test be taken by anyone they suspect was driving a vehicle that was involved in an accident. The test must be done within 4 hours of the driving.

Northern Territory

The Traffic Act 1987 allows police to conduct a breath test on private property. Police can require the test be taken by anyone they suspect was driving a vehicle that was involved in an accident, or was driving under the influence. The test must be done within 4 hours of the driving.

Queensland

The Transport Operations (Road Use Management) Act 1995 allows police to require a breath test from a person at a police station or at any other place. Police can use as much force as necessary if a person refuses. A test can be required if police reasonably suspect than in the previous 3 hours a person was driving, attempting to drive, or in charge of a motor vehicle, tram or train that was involved in an accident that resulted in injury, death or damage to property.

Tasmania

The Road Safety (Alcohol and Drugs) Act 1970 allows police to breath test on private property by virtue of their right to detain and test. If they reasonably suspect a person has been driving under the influence, they can, within 3 hours of the driving, arrest the person without warrant and/or impound the vehicle, and breath test the person there or take them to a place for testing. Police also have the power to enter the person’s vehicle using as much force as necessary to do this.

Challenging a test

If police have conducted a breath test on private property in circumstances not permitted under the relevant state or territory legislation, a lawyer can write to police to request the charge be dropped. The letter can foreshadow an application for costs should the charge be dismissed in court. If police persist with prosecution, a lawyer can argue to have the charges thrown out on the basis of illegality and apply for costs.

For advice or representation in any legal matter, please contact Armstrong Legal.

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