Refusal or Failure to Submit to Test, Analysis or Assessment

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This article was written by Michelle Makela - Legal Practice Director

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

Refuse or Fail to Submit to Breath Test


The offence of refuse to submit to breath test, analysis or assessment is committed by a person who refuses or fails to provide an oral fluid test or a sobriety assessment, without reasonable excuse. Following the recording of a criminal conviction, the maximum penalty for a first offence is a fine of 10 penalty units.

The Offence of Refuse to Submit Breath Test

The offence is set out in clause 16, Schedule 3 of the Road Transport Act 2013 which states a person must not, when asked by a police officer, refuse or fail to submit to an oral fluid test or a sobriety assessment.

What is an “Oral Fluid Test”?

The Act defines an oral fluid analysis as a test carried out by an approved oral fluid testing device for the purpose of ascertaining whether any prescribed illicit drugs are present in that person’s oral fluid.

What is an Approved Oral Fluid Testing Device?

The Act defines an approved oral fluid analysing instrument as any instrument that:

  • is designed to indicate the presence of any prescribed illicit drug in a person’s oral fluid; and
  • meets the standards prescribed by the statutory rules for such a device; and
  • is approved by the Governor.

What is a Prescribed Illicit Drug?

Section 4 of the Act lists the prescribed illicit drugs:

  • marijuana (also known as delta-9-tetrahydrocannabinol);
  • speed (also known as methylamphetamine);
  • ecstasy (also known as 3,4-methylenedioxymethylamphetamine).

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