In Victoria, you can be charged if you refuse a saliva sample for an oral fluid test under section 49(1)(eb) of the Road Safety Act 1986. Random roadside drug testing uses saliva samples to detect illicit drugs. Refusal to comply with a police officer’s lawful request to provide a saliva sample is an offence, and it can result in fines and loss of license, with even harsher penalties for repeat offenders.
If you’ve been charged with refusing a sample and need legal help, please contact our experienced driving offence lawyers. Drink and drug driving offences can have significant consequences, including losing your licence, severe financial penalties, or even prison in more extreme cases. Engaging an experienced driving offence lawyer is vital to achieving a not guilty verdict or minimising the penalties you may face.
Saliva Tests and Drug Driving Offences
What is a saliva test and how is it used in drug driving cases?
A saliva test (also known as an oral fluid test) is used to detect the presence of illicit drugs in a person’s oral fluid. The test is commonly used by police officers in roadside drug testing to determine if a driver has drugs in their system. The test is usually conducted using a prescribed device, such as a saliva testing kit. The results of the test can be used as evidence in court to support a drug driving charge.
What drugs are detected in an oral fluid test?
Roadside saliva tests can detect the following:
- THC (Delta-9 tetrahydrocannabinol), the active component in cannabis
- Methamphetamine, which is found in drugs such as ’speed’, ’base’, ‘ice’, and ‘crystal meth’
- MDMA, which is known as ecstasy.
It is important to understand that the drug testing laws in Victoria focus on the detection of drugs in the system, not on whether the driver is impaired by drugs. Unlike drink driving, there is no minimum amount of a drug that may be present in your system before you can be guilty of an offence. Many drugs remain detectable in your system for hours or even days after cessation of the drug, long after the effects of the drug have ceased.
Refusing a Saliva Sample: Consequences and Penalties
Understanding the Road Safety Act 1986
Under section 49(1)(eb) of the Road Safety Act 1986 (RSA), it is an offence to refuse to provide a sample of oral fluid when lawfully requested to do so by a police officer.
Offence – section 49(1)(eb)
(1) A person is guilty of an offence if he or she—
(eb) refuses to provide a sample of oral fluid in accordance with section 55D or 55E when required under that section to do so or refuses to comply with any other requirement made under that section
In order to understand the circumstances in which a police officer may request a sample of oral fluid under section 49(1)(eb), the section must be read in conjunction with sections 55D and 55E.
Preliminary oral fluid test – section 55D
(1) A police officer may at any time require—
(a) any person he or she finds driving a motor vehicle or in charge of a motor vehicle; or
(b) the driver of a motor vehicle that has been required to stop at a preliminary testing station under section 54(3); or
(c) any person who he or she believes on reasonable grounds has within the last 3 preceding hours driven or been in charge of a motor vehicle when it was involved in an accident; or
(d) any person who he or she believes on reasonable grounds was, within the last 3 preceding hours, an occupant of a motor vehicle when it was involved in an accident, if it has not been established to the satisfaction of the police officer which of the occupants was driving or in charge of the motor vehicle when it was involved in the accident—
to undergo a preliminary oral fluid test by a prescribed device and, for that purpose, may further require the person, if inside a motor vehicle, to leave the motor vehicle for the purpose of undergoing the test.
Oral fluid test (evidentiary test) – section 55E
(2) If a person undergoes a preliminary oral fluid test when required to do so under section 55D by a police officer or an enforcement officer and—
(a) the test, in the opinion of the police officer or enforcement officer in whose presence it is made, indicates that the person’s oral fluid contains a prescribed illicit drug; or
(b) the person, in the opinion of the police officer or enforcement officer, refuses or fails to carry out the test in the manner specified in section 55D(6)—
any police officer or, if the requirement for the preliminary oral fluid test was made by an enforcement officer, any police officer or any enforcement officer may require the person to provide a sample of oral fluid for testing by a prescribed device and, if necessary, analysis by a properly qualified analyst within the meaning of section 57B and for that purpose may further require the person to accompany any police officer or, if the requirement for the preliminary oral fluid test was made by an enforcement officer, any police officer or any enforcement officer to a place or vehicle where the sample is to be provided and to remain there until—
(c) the person has provided the sample and any further sample required to be provided under subsection (5), the sample has been tested by a prescribed device and the person has been given (if necessary) a part of the sample under subsection (11) and complied with any requirement made of him or her under section 59; or
(d) 3 hours after the driving, being an occupant of or being in charge of the motor vehicle—
whichever is the sooner.
Example
A person may be required to go to a police station, a public building, a booze bus or a police car to provide a sample of oral fluid under this section.
Police Powers and Saliva Tests
When can a police officer ask you to provide a saliva sample?
Victoria police can pull over any driver at any time and require them to undergo a preliminary oral fluid test. They may also test any person who the police believe on reasonable grounds has driven within the last 3 hours when it was involved in an accident.
If the oral fluid test indicates the presence of an illicit drug, or if the person fails to carry out the test in the specified manner, they will be required to provide a sample for an evidentiary oral fluid test. A person may be required to go to a police station, a public building, a booze bus or a police car to provide a sample of oral fluid. The officer must follow the correct procedures when conducting the test and must inform you of your rights.
Defences for Saliva Sample Refusal Charges
What are the possible defences for refusing a saliva sample?
It may be a defence if you have a reasonable excuse for refusing to provide a saliva sample. A defence is also available if it has been more than three hours since you last drove or were in charge of a vehicle (s55E(10).
Furthermore, the defence of “reason of a substantial character” may be available for refusing to provide a sample of oral fluid if there was some reason of a substantial character for the refusal, other than a desire to avoid providing information which might be used against you (s55E(12). That is, for this defence to apply, there must be a substantial reason, other than the possibility of incriminating yourself, as to why you cannot furnish a sample of breath.
This defence does not apply for a request to accompany a police officer to a police station or medical facility for the purpose of furnishing a sample (DPP v Greelish on appeal) or refusing to accompany for the purpose of providing a sample of blood (DPP v Holden).
What constitutes a defence of substantial character is determined by each case’s individual facts and circumstances. If you believe this defence may apply, you should discuss the possibility of a reason for substantial character defence with your legal practitioner.
Licence Disqualification and Its Consequences
What are the consequences of licence disqualification?
The penalties for refusing to comply with a request under s 49(1)(eb) are found in s 49(3AAA). If you refuse to provide a saliva sample, you will face a maximum fine of 12 penalty units for a first offence, 60 penalty units in the case of a second offence and 120 penalty units in the case of a subsequent offence.
Those found guilty of the offence will also have their license suspended for a minimum period of 2 years for a first offence and 4 years for a second offence. There is no discretion for loss of license for these charges. You will lose your license. However, a good lawyer can make sure you only receive the minimum license loss period and penalty.
Refusing a saliva sample can also lead to a drug driving offence, even if the test is not conducted. The police may use other evidence, such as by conducting an assessment of drug impairment under section 49(1)(ca) to support a drug-driving charge.
What to do if you are charged with refusing a saliva sample
It is essential to seek legal advice if you are charged with refusing a saliva sample. A lawyer can help you understand the charges and the potential consequences if you are found guilty. A lawyer can help you prepare a defence and represent you in court. An experienced lawyer can also help you negotiate with the prosecution and achieve the best possible outcome.
At Dribbin & Brown Criminal Lawyers, we can help you understand your rights and ensure that they are protected. If you have been charged, you should seek legal counsel as soon as possible and provide your lawyer with all relevant information and evidence.
Michael has been a Criminal Defence Lawyer since 2007 and is one of the founding partners of Dribbin & Brown Criminal Lawyers. He has been a criminal law specialist (accredited by the Law Institute of Victoria), since 2012 and has a broad depth of experience in criminal law, traffic law and intervention order law.
