Refusing to comply with Directions to Provide Additional Samples for Analysis?
There are a number of issues to consider if you have been charged with this offence.
- Can the prosecution make out their case?
- Where you driving or charge of a motor vehicle and stopped by police?
- Did you refuse to comply with the requirements of the police?
- were you assessed as impaired or was there an accident that resulted in a serious injury or death to another.
- Have you been charged for similar offence in the past?
It is an offence against the Road Safety Act 1986 (RSA) section 49(1)(ea) to refuse to comply with directions given by police made under sections 55B(1) or 55BA(2) of the RSA, these sections outline requirements to undergo blood and urine testing for the presence of a drug that could impair driving.
Section 55B states that if a person has completed an assessment for drug impairment in line with section 55A of the RSA and the police officer believes the person is impaired by a drug the person must provide a blood or urine sample or both. This may require that the person accompany the police to a specific location where that testing can be undertaken and remain until the sample has been collected or until 3 hours have lapsed.
Section 55BA is specific to the collection of blood samples collected after accidents resulting in death or serious injury. Here the police must reasonably believe that a fatal or near fatal accident has occurred and the person subject to the testing may have been driving or in charge of a motor vehicle involved in the accident in question. If the police have reason to believe a person fits that profile, they can require an approved health care professional obtain a blood sample for analysis.
A police officer who requires a driver to accompany them pursuant to section 55B(1) or section 55BA(2) 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:
1. verbally refusing the request of police;
2. refusing to accompany police to a place to undergo an assessment; or
3. being physically obstructive so as to not to comply.
Please read below for more information relating to this charge.
The offence
Section 49(1)(ea) 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 sections 55B(1) or 55BA(2) of the Road Safety Act 1986 to provide blood or urine for analysis.
The penalty
If found guilty of an Offence Involving Alcohol or Other Drugs: Refuse to comply with a requirement made to provide a blood or urine sample in accordance with section 55B(1) or 55BA(2) 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(1D), if a person is convicted or found guilty of an offence against section 49(1)(ea) for refusing to comply with a requirement made under section 55B(1) 55BA(2), 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(1D) 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 55B(1) and 55BA(2) 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?
Call Dribbin & Brown expert traffic lawyers based in Melbourne and Geelong.
Preparation is critical to the success of any matter, if you have been charged with refusal to comply with a requirement made by police to provide a blood or urine sample 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.
If you have been charged with refusing to comply with a requirement in relation to section 55B(1) or 55BA(2) of the RSA, a police officer may suspend your licence immediately, as per section 85A of the RSA see article. 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 Lawyers are experienced in handling these types of matters. We regularly appear in court to represent people charged with driving offences.
The Legislation (This is section 49 amended to only include relevant subsections to s49(1)(ea)
Section 49 Offences involving alcohol or other drugs
(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; 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—
(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.
(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).
(3AAA) A person who is guilty of an offence under paragraph (bb), (eb), (h) or (i) 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 60 penalty units; and
(c) in the case of any other subsequent offence, to a fine of not more than 120 penalty units
