Refuse Breath Test/ Refuse Drug Test Offence (VIC)
Refusing to submit a roadside breath test or blood test is an offence under section 49(1)(c) of the Road Safety Act 1986 (Vic). If you have been charged with refusing to submit a breath or blood test, get in touch to understand your options and potential defences for the case.
Penalties for refusing a breath / blood test
In order to be successful in charging you with refusing a breath or blood test, the prosecution must prove the following:
- That you are correctly identified as the offender;
- That you were driving / in charge of a motor vehicle or
a. The police officer believed you were driving / in charge within 3 hours of a collision or
b. The police officer believed you were an occupant of the motor vehicle involved in a collision within the last 3 hours in circumstances where he/she has not been able to establish who was driving. - The police officer required you to undergo a preliminary breath test in accordance with section 55 of the Road Safety Act; and
- You refused to comply with the demand.
Penalties for refusing a preliminary breath test
- For a first offence this carries a fine of up to 12 penalty units.
- For a second offence you may be fined up to 120 penalty units or imprisoned for up to 12 months.
- For a subsequent offence you can be fined up to 180 penalty units for face prison for up to 18 months.
Mandatory licence loss
Refusing a breath test is an offence that carries a mandatory licence disqualification period of 2 years for a first offence and 4 years for a subsequent offence. A Magistrate has no ability to reduce the minimum mandatory period but does have the ability to impose a longer period.
Other Refusal offences
The offence of refusing to stop/ remain at a preliminary breath testing station exists pursuant to section 49(1)(d) of the Road Safety Act 1986.
The offence of refusing / failing to undergo a breath test or accompany police for the purpose of a breath test or remain for up to 3 hours for that breath test to be conducted exists within section 49(1)(e) of the Road Safety Act 1986.
Penalties and licence loss provisions for offences under sections 49(1)(d) or (e) are the same as for offences laid under section 49(1)(c).
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Refusing Oral Fluid Drug Testing
Refusing oral fluid testing under section S49(1)(eb) typically relates to matters where a you are stopped for testing however, it is important to note that pursuant section 55D(1), a police officer may request oral fluid testing when;
i. You are found driving /in control of a motor vehicle; or
ii. You are driving a motor vehicle and required to stop and remain stopped at a preliminary breath testing station; or
iii. Police reasonably believe that you were driving / in charge of a motor vehicle which was involved in an accident within the last 3 hours;
iv. Police reasonably believe that you were an occupant in a motor vehicle involved in an accident within the last three hours, in circumstances where they have not established who was driving
Penalties for Refusing Oral Fluid Drug Testing
First offence; maximum fine of 12 penalty units
Second offence; maximum fine of 60 penalty units
Subsequent offences; a fine of 120 penalty units
Drivers found guilty of refusing oral drug testing under section S49(1)(eb) of the Road Safety Act 1986 face mandatory licence disqualification periods of;
First offence; 2-year licence disqualification
Subsequent offences; 4-year licence disqualification
Refuse to undergo Assessment Test for Drug Impairment
To be successful the prosecution must demonstrate:
- You were the driver:
- You were:
- Found driving /in control of a motor vehicle; or
- Driving a motor vehicle and required to stop and remain stopped at a preliminary breath testing station; or
- Police reasonably believe that you were driving / in charge of a motor vehicle which was involved in an accident within the last 3 hours;
- Police reasonably believe that you were an occupant in a motor vehicle involved in an accident within the last three hours, in circumstances where they have not established who was driving; or
- Required to undergo a preliminary breath test pursuant to section 53; or
- Required to provide a sample of breath pursuant to section 55; or
- Required to provide a blood sample in accordance with section 55(9A); and
- You were required to undergo an assessment for drug impairment in accordance with section 55A; and
- The requirement was made within 3 hours of your driving / being in charge/ being an occupant.
- You refused to comply with the requirement or any other requirement pursuant to section 55A(1)
Refuse Blood / Urine Test
The prosecution must demonstrate:
1. You were the driver:
2. You were:
- found driving /in control of a motor vehicle; or
- driving a motor vehicle and required to stop and remain stopped at a preliminary breath testing station; or
- Police reasonably believe that you were driving / in charge of a motor vehicle which was involved in an accident within the last 3 hours;
- Police reasonably believe that you were an occupant in a motor vehicle involved in an accident within the last three hours, in circumstances where they have not established who was driving; or
- Required to undergo a preliminary breath test pursuant to section 53; or
- Required to provide a sample of breath pursuant to section 55; or
- Required to provide a blood sample in accordance with section 55(9A); and
3. You were required to undergo an assessment for drug impairment in accordance with section 55A; and
4. The assessment, in the opinion of the officer, indicated you may be impaired by a drug(s); and
5. The police officer required you to:
- Allow a medical practitioner or approved health professional as nominated by the officer to take a sample of your blood for analysis; and/or
- Provide a registered medical practitioner / approved health professional as nominated by the officer with a sample of urine for analysis; and
6. For the purpose of providing the sample you were required to:
- Accompany the officer to a place where the sample was to be taken; or
- Remain at the place where the sample was to be taken; or
- Remain at the place for 3 hours following the driving/ being in charge; or
- Allow a sample of blood or urine to be taken for analysis; and
You refused to remain or allow the sample to be taken as required
Penalties for Refusing Blood or Urine Drug Testing
Drivers found guilty of refusal offences pursuant to section S49(1)(ca) or S49(1)(ea) of the Road Safety Act 1986 face penalties of:
First offence; maximum fine of 12 penalty units
Second offence; maximum fine of 120 penalty units or imprisonment for up to 12 months
Subsequent offences; a fine of 180 penalty units or up to 18 months imprisonment
Drivers found guilty of refusing oral drug testing under section S49(1)(ca) or (ea) of the Road Safety Act 1986 face mandatory licence disqualification periods of;
First offence; 2-year licence disqualification
Subsequent offences; 4-year licence disqualification
Get in touch today
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To provide the most efficient and cost-effective traffic law service, consultations are done through Zoom or Microsoft teams. Meetings may be arranged on site at Owen Dixon East Chambers Melbourne for an additional fee.
