s49(1)(eb) Refusing to Undergo Oral Fluid Test? 

Have you been charged with refusing to undergo an oral fluid test? 

There are a number of issues to consider if you have been charged with this offence.

• Can the prosecution make out their case?
• Did you refuse to undergo a preliminary oral fluid test for the detection of drugs when requested by police?
• Do you have prior history for a section 49 offence?

Please read below for more information relating to this charge.

The offence

Section 49 (1)(eb) of the Road Safety Act 1986.

The prosecution must prove that:

1. The defendant was driving or in charge of a motor vehicle within the three hours of a request for an oral preliminary fluid test; and
2. The defendant refused to provide refused to provide a sample of oral fluid in accordance with section 55D or 55E when required under that section to do so; or
3. The defendant refused to comply with any other requirement made under that section.

Pursuant to section 55D(1), a police officer may at any time require:

1. any person they find driving or in charge of a motor vehicle; or
2. a person stopped at a preliminary testing station (e.g. booze bus); or
3. any person they reasonably believe was in charge of a motor vehicle within 3 hours of it being in an accident; or
4. any person they reasonably believe was an occupant of a motor vehicle within 3 hours of it being in an 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.

Refuse sample for oral fluid testing (evidentiary test)

Pursuant to s 55E(2), if a person has:

(a) undergone a preliminary fluid test and an officer is of the opinion that the person’s oral fluid contains a prescribed illicit drug, or
(b) the person fails to carry out the preliminary oral fluid test satisfactorily

any officer may require the person to provide a sample of oral fluid for testing by a prescribed device, and for that purpose may require the person to accompany them to a police station, other appropriate place or vehicle.

A person suspected of driving on drugs or who has refused a preliminary oral fluid test will need to remain at a police station, vehicle or other place until the oral fluid test has been carried out, or it has been three hours since driving, whichever is sooner.

If you have also been asked to provide a sample of breath under s 55, or undergo an assessment of drug impairment under s 55A, you may be required to provide a sample of oral fluid (s 55E(3)).

If you have refused to provide a sample of oral fluid, or the prescribed device was not able to properly test your fluid, you may be required to allow a registered medical practitioner or approved health professional to take a sample of blood for the purpose of drug testing

Elements:

Refuse preliminary oral fluid test:

In order to show that you have refused to comply with a request for a preliminary oral fluid test, the police must show that:

Refusal may be by words or conduct, so simply failing to undergo the prescribed oral test will amount to refusal, even if you have not explicitly said you refuse.

If you initially refuse, and then later consent, you may still be charged with refusing to comply. This will proceed at the prosecution’s discretion. You should discuss this with an experienced criminal solicitor. In some circumstances, you may be able to have the charge of refusing to comply withdrawn if you did eventually consent to supply an oral sample. If the test proved positive, charges may proceed on ss 49(1)(ba) or (bb) which carry significantly lower disqualification periods, meaning less time off the road for you.

Elements:

Refuse (evidentiary) oral fluid test:

Pursuant to s 55E(2), if a person has:

(a) undergone a preliminary fluid test and an officer is of the opinion that the person’s oral fluid contains a prescribed illicit drug, or
(b) the person fails to carry out the preliminary oral fluid test satisfactorily

In order for the police to make out a charge under s 49(1)(eb) for failing to comply with a request under s 55E(2) or (3), they must show that:

1. you were driving or in charge of a motor vehicle within the last three hours; and
2. they required you to undergo a preliminary oral fluid test; and
3. the preliminary oral fluid test indicated you may be impaired by drugs, or you refused or failed to satisfactorily undergo a preliminary oral fluid test; and
4. they then required you to supply a sample of oral fluid and may also have required you to accompany them to a place where a sample could be obtained; and
5. you refused to comply with this request or refused to remain at that place until either the test was complete, or three hours had elapsed since you were driving.

Refusal may be by words or conduct.

The penalty

If found guilty of an Offence Involving Alcohol or Other Drugs: Refusing to Undergo a Preliminary Oral Fluid Test the maximum penalties are:

1. For a first offence, a fine of 12 penalty units.
2. For a second offence, a fine of 120 penalty units.
3. For a third or subsequent offence, a fine of 180 penalty units.

Further, pursuant to subsection 50(1D), if a person is convicted or found guilty of an offence against s 49(1)(eb) for refusing to undergo a preliminary oral fluid test 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.
• 4 years for any subsequent offence.

Where will my case be heard?

Driving Offences Involving Alcohol or other Drugs 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?

Refusal offences can be quite legally technical.

If you have been charged with refusal to undergo a preliminary oral fluid test for the presence of drugs and if your driver’s licence is important to you, don’t go to court unrepresented. Call our office to speak to a traffic law expert today.

The police and the courts take driving offences very seriously to avoid severe penalties you need to be represented; Dribbin & Brown are drug driving lawyers that are experienced in handling these types of matters. We regularly appear in court to represent people charged with driving offences. 

The Legislation (amended to just include the subsection relation to s49(1)(eb)

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.

(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).

(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.