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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.

Refuse Breath Test (Vic)


It is an offence under the Road Safety Act 1986, for a driver to refuse to undergo a preliminary breath test (PBT). A police officer can stop a driver at any time to conduct a PBT, though a PBT is routinely conducted after an accident and at roadside breath testing stations.

Refusal may be made by words or conduct. If you do not properly blow into the device, or stop blowing before instructed, this could amount to a refusal.

Breath testing

The Act allows an officer to breath-test a person if the officer believes that in the previous 3 hours the person has driven, or is suspected to have driven, a vehicle involved in an accident. A person is not obliged to submit to a breath test if 3 hours have passed since the person last drove or was an occupant in a vehicle.

A police officer on duty and wearing uniform can request or signal any driver to stop the vehicle for a PBT and remain stopped until informed they can proceed.

If a test shows the person’s breath contains alcohol, or the person refuses for fails to carry out the test properly, the officer can require the person to accompany them to a police station, public building, booze bus or police car to conduct a first or follow-up test using a breath analysing instrument. The device will provide a printout of the test result.

If a person is unable to complete a breath test on medical grounds or due to a physical disability, a police officer can require that person to allow a registered medical practitioner or approved health professional to take a sample of the person’s blood for analysis.

If the breath analysing equipment cannot take a sample for any reason, the police officer can require the person to accompany them to a place for testing and remain there until the sample has been taken or until three hours after the driving, whichever is sooner.

Penalties

The penalties for refusing to undergo a PBT are:

  • first offence: maximum fine of 12 penalty units ($1982.64);
  • second offence: maximum fine of 120 penalty units ($19,826.40) or imprisonment for up to 12 months;
  • third or subsequent offence, maximum fine of 180 penalty units ($29,739.60) or imprisonment for up to 18 months.

Mandatory licence disqualification also follows a conviction or finding of guilt. For a first offence, the disqualification period is 2 years and for a subsequent offence, 4 years. For the purposes of disqualification, driving offences committed more than 10 years ago are not deemed prior offences. However, a magistrate has discretion to impose a disqualification longer than the mandatory 2-year minimum.

A prior conviction or finding of guilt for drink or drug driving will count as a prior offence, whether or not the person consented to a PBT on that occasion.

Defences

Case law shows a person may have a defence if the police officer requesting the test does not properly explain that the test is a preliminary breath test, or explain how it is to be conducted.

A defence may exist when there is some substantial reason for the refusal, such as a medical condition. Expert medical evidence will need to be provided to argue this defence.

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

Peebles v Hotchin

In this leading test case for the offence, a man refused to undergo a breath test after police were told he was seen parking a van at a shopping centre and was heavily intoxicated. The key issue was that the police had not seen him drive the van and were relying on witness statements from security guards. Ultimately the court decided the man had no case to answer because police could not have reasonably suspected he was driving the vehicle.

DPP v Skafidiotis

In this case, a police officer appealed a court’s decision to dismiss a charge of refuse to undergo a breath test. A man had been told by a police officer: “I want you to take a breath test” when the parties were in the car park of a fast food restaurant at 4.30am, and the officer did not have in his possession a preliminary breath testing device. The court ruled the instruction was “ambiguous in all the circumstances” and that the man might have believed he was required to provide a breath sample at a police car or police station without having first undergone a preliminary breath test. It ruled that “someone in his position might reasonably have concluded that it was a potentially incriminating evidentiary sample of breath which was being required of him”, and dismissed the appeal.

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

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