You are pulled over by police. Do you have the right to refuse a roadside breath test?
No, you do not have the right to refuse a roadside breath test in Victoria. Under section 49(1)(c) of the Road Safety Act 1986 (RSA), it is an offence to unlawfully refuse a breath test (PBT) when requested by a police officer.
- For a first offence, the penalties include a maximum fine of 12 penalty units ($2,371) and a minimum licence disqualification period of 2 years.
- Upon relicensing, a mandatory alcohol interlock condition for at least 6 months and a Z condition for at least 3 years, which requires zero blood alcohol content while driving, also applies.
If you have been charged, you should seek legal advice from drink driving experts to see if you have a defence.
What is a random breath test?
A random breath test (RBT) is a test given by police to any randomly chosen driver using an approved breathalyser device to measure the concentration of alcohol in the driver’s breath.
The breathalyser device determines the driver’s blood alcohol concentration (BAC) to check if the driver is within the legal limit. Exceeding this limit or refusing the breath test is considered a drink driving offence. In Victoria, a random breath test, or a preliminary breath test as it is known in the legislation, is conducted under section 53 of the RSA.
Random breath tests typically occur when a driver is required to stop at a preliminary testing station or booze bus under s53(1)(b); however, any person found driving or in charge of a motor vehicle can be required to undergo a preliminary breath test by police under s53(1)(a). A person may be required to undergo the test within 3 hours of driving.
Random breath test locations
Random breath test stations (also known as preliminary breath testing stations or booze buses in Victoria) are strategically located across the state to enforce drink driving laws. These locations are based on data analysis of past incidents.
Locations typically include major highways, urban streets, tourist destinations and popular nightlife areas where drink driving is more likely to occur. Drivers are, therefore, most likely required to undergo a random breath test in high-risk areas during busy times.
What is the difference between a preliminary breath test and an evidentiary breath test?
A driver is usually first required to undergo a preliminary breath test (PBT) on a hand-held breath test device. Then, if the PBT indicates the presence of alcohol, or if the person refuses or fails to carry out the test, the person may be required to provide a breath sample for an evidentiary breath test by a breath analysing instrument under section 55 of the RSA.
To provide an evidentiary breath test, a person may be required to go to a police station, a public building, a booze bus or a police car to furnish the breath sample (s55(1)).
It is an offence under section 49(1)(e) to refuse to comply with directions given by police made under sections 55(1), (2), (2AA), (2A) or (9A) of the RSA. Once a breath sample is obtained under this section, the analysis may be used as evidence for any offence under section 49(1).
The charge of refusing a breath test
It is an offence against the Road Safety Act 1986 (RSA) section 49(1)(c) to refuse to undergo a preliminary breath test (PBT). The offence of refusing to comply with a requirement to undergo a breath test under section 49(1)(c) is designed to ensure that people will not escape the consequences of drink driving because they cannot be forced to undergo the relevant tests.
To be found guilty of this offence, the prosecution must prove beyond reasonable doubt that:
- the accused was the driver or in charge of a motor vehicle (s53(1)(a)); or
- the accused believed on reasonable grounds to be driving or in charge of a motor vehicle within the preceding three hours when it was involved in an accident (s53(1)(c)); or
- the accused believed on reasonable grounds to be an occupant of a motor vehicle involved in an accident within the preceding three hours, and the identity of the driver has not been satisfactorily established (s53(1)(d)); and
- the accused was required to undergo a PBT under s 53 (s53(1)(b)); and
- the requirement was made within three hours of the accused driving, being in charge of or being the occupant of a motor vehicle; and
- the accused refused to comply with the requirement.
The prosecution must prove the requirement to undergo a breath test was in accordance with s53 and that the accused fell within one of the triggers for the requirement to undergo a breath test set out in s 53(1)(a)–(d) or (2).
Notably, under s49(1A)(a), a person may be convicted of this offence even if a prescribed device was not presented to them when police imposed the requirement to undergo a preliminary breath test.
Can you be detained for refusing to take a breath test?
The police do not have the power to arrest or detain you for refusing to take a breath test. However, if you drive off or refuse a breath test, you commit an offence that results in at least 2 years of licence cancellation and possibly imprisonment for repeat offences.
Police may also ask you to provide your name and address if they believe you have committed an offence (Crimes Act 1958 s456AA), with refusal to do so an offence under 456AA(3)(a) of the Crimes Act 1958.
Can you legally refuse a preliminary breath test in Victoria?
More often than not, the answer is no. However, there are some circumstances where it may be legally permissible to refuse to provide a preliminary breath test. For example, if a person has a medical reason or disability causing them to be unable to provide a breath sample, they may have a successful defence.
However, if police believe there may be a medical reason for refusal, the driver will likely be directed to provide a blood sample, which must be done unless it would be medically dangerous to do so.
Police powers and procedure for breath testing
The following police powers and procedures apply when conducting a preliminary breath test under section 53(1) of the RSA:
- Police may require any person they find driving a motor vehicle or in charge of a motor vehicle to undergo a preliminary breath test.
- Any police officer can conduct a preliminary breath test or set up a preliminary breath testing station (roadside breath test) (ss53(1), 54(1)).
- At a breath testing station, a police officer may signal any driver to stop the vehicle and remain stopped until they indicate that the driver may proceed (s54(3))) and police must ensure that no person is detained any longer than is necessary (s54(4)).
- A police officer may require a person to undergo a preliminary breath test at any time within the three hours since the person last drove, was an occupant or was in charge of a motor vehicle (s53(4)).
- If a driver is required to undergo a preliminary breath test, they must do so by exhaling continuously into the device to the satisfaction of the police officer (s53(3)).
- When requesting a breath test, police officers must provide sufficient information for the driver to know what is required of them (Sanzaro v County Court).
If the police do not carry out a preliminary breath test in accordance with the above powers and requirements, then a prosecution for refusal to undertake a breath analysis may not be successful.
Case Summary
Sanzaro v County Court of Victoria [2004] VSC 48
Summary of facts:
- The plaintiff was charged with an offence under s49(1)(e) of the Road Safety Act 1986 for failing to comply with a requirement to remain at a “booze bus” for a breath test.
- The incident occurred on 31 March 2002 when Constable Sadler intercepted the plaintiff’s vehicle for a random breath test on the Monash Freeway.
- The preliminary breath test indicated that the plaintiff’s blood contained alcohol. Constable Sadler then required the plaintiff to accompany him to the breath-testing vehicle.
- Once at the vehicle, Constable Sadler informed the plaintiff that he would have to wait for some checks to be completed before he could undergo the breath test. The plaintiff agreed to wait.
- However, after completing the checks, Constable Sadler found that the plaintiff had left the scene.
Procedural history:
- The plaintiff was charged with failing to comply with a requirement under s55(1) of the Road Safety Act 1986 to remain at the bus.
- At the County Court, the plaintiff’s counsel argued that there was no case to answer as Constable Sadler had not explicitly required the plaintiff to remain at the bus.
- The judge rejected this argument, ruling that the plaintiff should have been aware that he was required to remain at the bus until the breath sample was taken.
- The plaintiff was convicted of the offence under s49(1)(e) of the Road Safety Act 1986.
- The plaintiff then applied for an order in the nature of certiorari to quash the County Court’s order.
Decision:
- Nettle J rejected the plaintiff’s contentions and upheld the County Court’s decision. The judge held that the requirement for the plaintiff to remain at the bus was made clear by Constable Sadler and that the plaintiff was left in no doubt that he was obligated to remain there.
- The judge also held that the plaintiff’s understanding of what was required of him was relevant to the case. The judge found no error in the County Court judge’s reliance on Rankin v O’Brien and DPP v Blyth. The judge also held that the plaintiff’s agreement to wait for the checks to be completed before he was to enter the bus for the breath test made a formal requirement to remain unnecessary. The application for an order of certiorari was refused.
What happens if you refuse to take a breath test?
It is an offence to refuse a request for a breath test under section 49(1) of the RSA, which carries significant legal consequences.
The penalty for refusing a breath test
If found guilty of refusing to undergo a preliminary breath test in accordance with section 53, 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.
While the penalty for a first is a relatively modest fine, the licence disqualification period is mandatory and set at a minimum. In comparison, agreeing to undergo a breath test and being charged with drink driving only attracts a minimum disqualification period of 2 years if the person’s BAC is as high as 0.24.
See here for more on the drink driving offence of exceeding the prescribed concentration of alcohol.
What is the minimum disqualification for refusing a breath test?
Under section 50(1B), if a person is convicted or found guilty of an offence against section 49(1)(c) for refusing to undergo a PBT when requested to do so, 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; or
- 4 years for any subsequent offence.
The impact of prior offences
The penalties for refusing a breath test under section 49(1)(c) escalate significantly for second or subsequent offences. The difference between the mandatory minimum for a first offence and a subsequent offence includes an additional two years of licence disqualification and over 100 penalty units in fines.
Section 50AA deems convictions for drink or drug driving offences older than 10 years not to count as prior offences for the purposes of mandatory disqualification. However, a Magistrate retains the discretion to impose a licence disqualification period exceeding the mandatory minimum of two years, potentially resulting in a longer time off the road.
If you have previously been convicted or found guilty of a drink or drug driving offence, this will count as a prior offence, even if you previously complied with a preliminary breath test at the time. You should consult an experienced criminal solicitor when dealing with any refusal to undergo a preliminary breath test charge, particularly if you have been found guilty of a prior drink or drug driving offence.
Where will my case be heard?
Driving offences involving alcohol or other drugs are heard in the Magistrates Court.
Defences to refusing a breath test
If you have been charged for refusing a breath test, there are several issues to consider with your lawyer, including whether you have a defence available:
- Were you falsely identified as the accused?
- Did you have a legitimate reason for not complying with the police?
- Did you refuse to undergo a breath test when requested by the police?
- Did the police both legally and correctly put the demand to you?
- Did you undertake the procedure satisfactorily, but police are claiming you didn’t?
- Had it been longer than three hours since you last drove a motor vehicle?
More than 3 hours since driving
The most persuasive defence to the charge is that more than 3 hours have passed since the person was driving or in charge of a motor vehicle, meaning that the person was not obliged to undergo a preliminary breath test. It may also be a defence if the police officer requesting the breath test did not adequately explain that the test is a preliminary breath test or how the test is to be undertaken (DPP v Skafidiotis).
Charged with refusing to undergo a preliminary breath test?
If you’ve been charged with refusing a preliminary breath test, your licence and future are on the line. Don’t face these serious charges unrepresented. The police and courts take drink-driving offences very seriously, and a well-prepared defence can make all the difference.
At Dribbin & Brown Criminal Lawyers, we specialise in defending clients charged with refusing a preliminary breath test. With offices conveniently located near Magistrates’ Courts in Dandenong, Geelong, Melbourne CBD, Ringwood, Ballarat, Frankston, Moorabbin, and Werribee, we have the local knowledge and experience to achieve the best possible outcome for your case.
Legislation for the offence of refusing a breath test
Road Safety Act 1986 – Section 49 Offences involving alcohol or other drugs
(1) A person is guilty of an offence if he or she—
…
(c) refuses to undergo a preliminary breath test in accordance with section 53 when required under that section to do so; 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
…
(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.
…
(3AA) A person who is guilty of a supervising driver offence is liable to a fine of not more than 20 penalty units.
