Refuse Breath Test (Qld)

It is an offence under section 80 of the Transport Operations (Road Use Management) Act 1995 for a driver to refuse to provide a specimen of breath or saliva when requested by a police officer. This includes failing to provide a specimen in the way directed by an officer, such as when a person does not properly blow into the breath-test device, or stops blowing before instructed.

A police officer can stop a driver at any time to conduct a breath test or saliva test but these tests are routinely conducted after an accident and at roadside testing stations.

Breath or saliva testing

A police officer can require a person to undergo a breath test, or a saliva test, or both, when the officer believes that in the past three hours the person was:

• driving or attempting to drive a motor vehicle, tram or train on a road or elsewhere; or
• in charge of a motor vehicle, tram or train on a road or elsewhere; or
• otherwise operating, or interfering with the operation of, a motor vehicle dangerously on a road or elsewhere;
• driving or attempting to drive a boat.

A police officer can also require a person to undergo a breath test, or a saliva test, or both, if a motor vehicle, tram, train or boat is involved in an incident that results in injury to or death of a person, or damage to property, and the officer suspects the person was:

• driving or attempting to drive a motor vehicle, tram or train on a road or elsewhere; or
• in charge of a motor vehicle, tram or train on a road or elsewhere; or
• for an incident involving a motor vehicle, was otherwise operating, or interfering with the operation of, a motor vehicle dangerously;
• driving or attempting to drive a boat.

An officer can require as many breath or saliva specimens as necessary to carry out the test. The collection of more than one specimen may be necessary if the testing device becomes defective, or if it becomes impossible to use or continue to use the device. The test must be conducted within 3 hours of the driving.

Further testing

The police have the right to use as much force as necessary to take a person to a police station, police vehicle, hospital or other place for testing using an analysing instrument if:

• a breath test shows a person is over the general alcohol limit;
• the person refuses to undergo a breath test and the officer suspects the person is over the general alcohol limit;
• a saliva test shows the presence of a relevant drug;
• the person fails to provide a specimen of breath or saliva, or does not provide a specimen properly, or refuses to wait for a test to be done;
• the person has provided a medical certificate to exclude them from testing but shows signs of being affected by alcohol or a drug.

A person who has been arrested for a traffic offence, or who is in hospital for treatment after a traffic incident, may be required to also provide a specimen of blood or urine for analysis. If the person refuses to comply, they commit an offence.

A police officer, or doctor or other health professional must provide a certificate that states the person did not provide a specimen when requested. This certificate is used as evidence in any court proceeding.

Penalties

The maximum penalty for failing to provide a breath or saliva specimen is 40 penalty units ($5338) or imprisonment for 6 months. If a person who has been arrested for a traffic offence, or who is in hospital for treatment after a traffic incident, refuses to supply a blood or urine specimen, the same penalty applies. That person will also be liable to the penalty, including licence disqualification, for driving under the influence of alcohol or a drug.

Defences

The Act states a person is not guilty of the offence of refusing to undergo a breath test or saliva test if the person:

• can provide evidence from a doctor that:
  • the person cannot provide either specimen because of a stated illness or disability; or
  • providing a specimen could adversely affect the person’s health; or
• can show that:
  • the request for a specimen was not lawfully made; or
  • they could not provide a specimen due to circumstances; or
  • there was some other substantial reason a specimen could not be provided.

There can also be a defence if the breath test was carried out more than 3 hours after the driving in question.

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