Have you been charged refusing to comply with Directions made by Police to Regarding Breath Analysis?
It is an offence against the Road Safety Act 1986 (RSA) section 49(1)(e) to refuse to comply with directions given by police made under section 55(1), (2), (2AA), (2A) or (9A) of the RSA, section 55 outlines requirements to undergo breath analysis for blood alcohol concentration.
There are numerous ways section 49(1)(e) of the RSA may be breached. The directions for the relevant subsections under section 55 are all slightly different, but all contain specific elements that must be satisfied for the police to show that a driver refused to comply a direction.
Pursuant to section 55(1), if a driver tests positive to a preliminary breath test or refuses or fails to adequately undergo a preliminary breath test, a police officer may direct the driver to furnish an additional sample of breath for analysis, or accompany them to a police station or vehicle to provide such a sample.
Pursuant to section 55(2) a police officer must reasonably believe the person to have been driving, within the previous three hours, under the influence of intoxicating liquor, or exceeding the prescribed content of drug and/or alcohol, and they may require you to provide a sample of breath, or accompany them to a police station or vehicle for the purposes of providing a sample of breath.
For section 55(2AA) the police can require any person who is required, driver or occupant in a vehicle, to undergo a drug assessment under to also furnish a sample of breath for analysis by a breath analysing instrument and may, for that purpose, require the person to remain at the place at which the person is required to remain for the purposes of the drug assessment until directed. This provision exists in for instances where a person may be driving under the influence of both alcohol and drugs. If a driver refuses the drug assessment component, or the breath test component, or both, they can be charged with one or both of those offences.
Pursuant to section 55(2A) a person who required a sample of breath under subsection (1), (2) or (2AA) may require the person who furnished it to furnish one or more further samples if it appears to him or her that the breath analysing instrument is incapable of measuring the concentration of alcohol present in the sample, or each of the samples, previously furnished in grams per 210 litres of exhaled air because the amount of sample furnished was insufficient or because of a power failure or malfunctioning of the instrument or for any other reason whatsoever.
For s 55(9A) the police must show that a driver providing the breath sample was then required to provide a sample of blood or accompany a police officer to a place where the blood sample can be taken and remain there until the sample is taken or until 3 hours lapses,
A police officer who requires a driver to accompany them pursuant to one of the mentioned provisions of section 55 is obliged to state the purpose of the requirement and to disclose the circumstances which by law justify the requirement.
A refusal can either be verbal or by conduct. Refusing to comply with a direction includes:
- verbally refusing the request of police;
– refusing to accompany police to a place to undergo an assessment; or
– being physically obstructive so as to not to comply.
As outlined below the periods of licence disqualification are double the mandatory minimum of that where an offender tests positive.
Please read below for more information relating to this charge.
The offence
Section 49(1)(e) of the Road Safety Act 1986.
The prosecution must that:
- The defendant was driving or in charge of a motor vehicle; and
- The defendant refused to comply with a requirement made in accordance with section 55 of the Road Safety Act 1986.
The penalty
If found guilty of an Offence Involving Alcohol or Other Drugs: Refuse to comply with a requirement the maximum penalties are:
- For a first offence, a fine of 12 penalty units.
- For a second offence, a fine of 120 penalty units or imprisonment for a term of 12 months.
- For a third or subsequent offence, a fine of 180 penalty units or imprisonment for a term of 18 months.
Further, pursuant to section 50(1B), if a person is convicted or found guilty of an offence against section 49(1)(e) for refusing to comply with a requirement made under section 55, the court must suspend that person’s driver licence or learner permit, and disqualify them from driving for a minimum period of:
- 2 years for a first offence.
- 4 years for any subsequent offence.
The disqualification periods in s 50(1B) are mandatory minimum periods that a Magistrate must disqualify a person from driving. They can impose longer disqualification periods, particularly for subsequent offences.
Where will my case be heard?
Driving Offences Involving Alcohol or other Drugs: Refusing to Comply with a Requirement Made Under Section 55 cases will be heard will be heard in the Magistrates Court.
Questions to consider
- Do you have a defence?
- Had it been longer than three hours since you last drove a motor vehicle?
- If you are pleading guilty, what can you do to minimise your sentence?
What to do next?
If you have been charged with refusal to comply with a requirement made by police regarding breath analysis and your driver’s licence is important to you, don’t go to court unrepresented. Consider how much it will cost you to be disqualified from driving for 2 years. If you have previously committed an offence of driving under the influence of drugs or alcohol the penalties will be more severe, you may receive a term of imprisonment.
For the purposes of disqualification, section 50AA of the RSA deems driving offences for which you were convicted over 10 years ago not to be a prior offence. However, it is still at a Magistrates’ discretion to disqualify you from driving for longer than the mandatory 2 year minimum.
If you have been charged with refusing to comply with the requirements of the relevant provisions of section 55, a police officer may suspend your licence immediately, as per section 85 of the RSA. This would mean you cannot drive until your matter has been determined at court, but this suspension can be appealed while awaiting the court hearing for the alleged offence.
The police and the courts take driving offences very seriously to avoid severe penalties you need to be represented; Dribbin & Brown are experienced traffic offence lawyers. We regularly appear in court to represent people charged with driving offences.
The Legislation
Section 49 Offences involving alcohol or other drugs
(1) A person is guilty of an offence if he or she—
(e) refuses to comply with a requirement made under section 55(1), (2), (2AA), (2A) or (9A); or
(1A) A person may be convicted or found guilty of an offence under paragraph (c), (ca), (e), (ea) or (eb) of subsection (1) even if—
(a) in the case of an offence under paragraph (c), a prescribed device was not presented to the person at the time of the making of the requirement; and
(b) in the case of an offence under paragraph (ca)—
(i) a requirement to undergo an assessment of drug impairment was not made at a place where such an assessment could have been carried out; and
(ii) a police officer authorised to carry out an assessment of drug impairment was not present at the place where the requirement was made at the time it was made; and
(c) in the case of an offence under paragraph (e)—
(i) a breath analysing instrument was not available at the place or vehicle where the requirement was made at the time it was made; and
(ii) a person authorised to operate a breath analysing instrument was not present at the place where the requirement was made at the time it was made; and
(iii) the person requiring a sample of blood had not nominated a registered medical practitioner or approved health professional to take the sample; and
(iv) a registered medical practitioner or approved health professional was not present at the place where the requirement was made at the time it was made; and
(d) in the case of an offence under paragraph (ea)—
(i) the police officer requiring a sample of blood had not nominated a registered medical practitioner or approved health professional to take the sample; and
(ii) the police officer requiring a sample of urine had not nominated a registered medical practitioner or approved health professional to whom the sample was to be furnished for analysis; and
(iii) a registered medical practitioner or approved health professional was not present at the place where the requirement was made at the time it was made; and
(e) in the case of an offence under paragraph (eb)—
(i) a prescribed device was not presented to the person at the time of the making of the requirement; and
(ii) a prescribed device was not available at the place or vehicle where the requirement was made at the time it was made; and
(iii) a person authorised to carry out the prescribed procedure for the provision of a sample of oral fluid was not present at the place where the requirement was made at the time it was made; and
(iv) the person requiring a sample of blood had not nominated a registered medical practitioner or approved health professional to take the sample; and
(v) a registered medical practitioner or approved health professional was not present at the place where the requirement was made at the time it was made.
(1B) To avoid doubt, in proceedings for an offence under paragraph (e) of subsection (1) a state of affairs or circumstance referred to in subsection (1A)(c)(i) or (ii) is not a reason of a substantial character for a refusal for the purposes of section 55(9).
(1C) To avoid doubt, in proceedings for an offence under paragraph (eb) of subsection (1) a state of affairs or circumstance referred to in subsection (1A)(e)(i), (ii) or (iii) is not a reason of a substantial character for a refusal for the purposes of section 55E(12).
(3) A person who is guilty of an offence under paragraph (ba), (c), (ca), (d), (e) or (ea) of subsection (1), other than a supervising driver offence, is liable—
(a) in the case of a first offence, to a fine of not more than 12 penalty units; and
(b) in the case of a second offence, to a fine of not more than 120 penalty units or to imprisonment for a term of not more than 12 months; and
(c) in the case of any other subsequent offence, to a fine of not more than 180 penalty units or to imprisonment for a term of not more than 18 months.
