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This article was written by Fernanda Dahlstrom - Content Editor - Brisbane

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

Refuse to Submit to Breath Test (Vic)


Under the Road Safety Act 1986, it is an offence in Victoria to refuse to submit to a breath test. This article outlines the penalties for this and related offences and discusses the steps a person charged with these offences may want to consider taking.

Who can the police breath test?

In Victoria, police have the power to require a person to take part in a preliminary breath test if:

  • they are driving or in charge of a motor vehicle;
  • they have been stopped at a preliminary testing station;
  • the police believe on reasonable grounds that they have been driving or in control of a vehicle that was involved in an accident in the last three hours;

A person does not have to take part in a breath test if it was more than three hours since they last drove.

The offence of refuse to submit to breath test

It is an offence under section 49(1)© to refuse to undergo a preliminary breath test when required to do so. The penalty for a person found guilty of the offence of refuse to submit to a breath test  is a fine of up to 12 penalty units for a first offence or for a second or subsequent offence, a fine of up to 120 penalty units or imprisonment for up to 12 months.

Furthermore, if a court finds a person guilty of refusing to take part in a breath test, it must disqualify them from driving for a minimum period of:

  • 2 year, for a first offence.
  • 4 years, for a subsequent offence.

It is worth noting that the disqualification period that applies for refusing to take part in a breath test is longer than the mandatory disqualification period for any drink driving offence. Therefore, a person is always better off giving a breath sample than refusing it, even if they are likely to record a high BAC.

The offence of refuse to submit to drug impairment assessment

The police also have the power to require a person to take part in a drug impairment assessment if:

  • they are driving or in charge of a motor vehicle;
  • they have been stopped at a preliminary testing station;
  • the police believe on reasonable grounds that they have been driving or in control of a vehicle that was involved in an accident in the last three hours;
  • they have required the person to take part in a preliminary breath test;, breath analysis or blood test

if in the opinion of the police the person’s behaviour suggests that they may be impaired for a reason other than alcohol alone.

A drug is defined as any substance other than alcohol that deprives a person of their normal mental and physical faculties.

A person does not have to take part in a drug impairment assessment if it is more than three hours since they last drove.

Offence of refuse drug impairment assessment

Under section 49(1)(ca) a person commits an offence if they refuse to comply with a drug impairment assessment when required to do so. The penalty for a person found guilty of this offence is a fine of up to 12 penalty units for a first offence or for a second or subsequent offence, a fine of up to 120 penalty units or imprisonment for up to 12 months.

Drink driver education programs

When a person is charged with drink driving offences, they may choose to take part in a drink driver education program. Such programs exist to educate the public about the potential consequences of mixing drugs or alcohol with driving and to equip participants to make better driving choices in the future.

Participation in a drink driver education program prior to sentencing may help to demonstrate to the court that the accused is taking the matter seriously and taking steps to avoid reoffending. It may – though will not always – lead to the court imposing a more lenient sentence.

Pleading guilty to refuse to submit to breath test and other driving offences

When a person has been charged with drink driving offences and is planning to plead guilty, they should do the following in preparation for court:

  • If they are under financial hardship, obtain evidence of their income and expenses so that the court can take this into account when deciding on the amount of any fine imposed;
  • If they are likely to suffer particular hardship as the result of losing their license (for example, if they rely on their license for work or to care for others), obtain evidence of this;
  • Obtain character references to tender to the court from person who know them well and are aware of the charges;
  • Consider undertaking a drink driver education program prior to sentencing,

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

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