Refuse to Submit to Breath Test (Vic) - Penalties Explained

Police in Victoria may require you to submit a roadside preliminary breath test if you are driving a vehicle, in charge of a vehicle, or they believe that you have been involved in a recent accident where you were in control of a vehicle at the time of the accident.

Refusing to submit a roadside breath test in Victoria is an offence under section 49(1)(c) of the Road Safety Act 1986 (Vic) and carries significant legal consequences.

When Can Police Request A Breath Test?

Police in Victoria have the power to require a person to submit preliminary breath test (PBT) if any of the following apply:

• A person is driving or in control of a motor vehicle.

• A person is stopped at a roadside testing station for a random breath test.

• Police have reasonable grounds to believe that a person was driving or in control of a motor vehicle that was involved in an accident in the last three hours.  If police are not sure who was driving after an accident they can test all occupants.

Note: The three-hour time limit is critical. Individuals are not required to submit to a breath test if it has been longer than three hours since they were last in control of a motor vehicle.  In the case of an accident the police must reasonably believe it occurred within the last 3 hours.

Can you Lawfully Refuse to Submit to A Breath Test in Victoria?

Generally speaking, the answer is no, you cannot refuse to submit a roadside breath test in Victoria when requested to do so by police.

A person with a genuine medical condition or disability that prevents them from being able to provide a breath sample may have a valid defence for refusing to submit a roadside breath test.

If there is a genuine medical condition that prevents a roadside breath test, police will usually require a blood sample instead. A blood test must be completed unless a registered medical practitioner determines that it would be medically unsafe to do so.

There may be a defence if the police failed to properly explain what was required (DPP v Skafidiotis).  If your refusal was not a conscious or voluntary refusal then you are not guilty of this offence. 

What Happens if You Refuse to Submit A Breath Test?

Under section 49(1)(c) of the Road Safety Act 1986 (Vic), it is an offence to refuse or fail to undergo a preliminary breath test.

Refusing a breath test in Victoria is often treated more harshly than recording a high-range blood alcohol reading on a breath test. Victorian courts frequently emphasise that refusing a breath test will not help avoid consequences and frequently leads to tougher penalties than a high BAC result.

Penalties for Refusing to Submit A Breath Test in Victoria

The maximum penalties for refusing to undergo a preliminary breath test in Victoria are as follows:

• First offence: A fine of up to 12 penalty units.

• Second offence: A fine of up to 120 penalty units or up to 12 months’ imprisonment.

• Third or subsequent offence: A fine of up to 180 penalty units or up to 18 months’ imprisonment.

Penalty Unit values are updated each year but for the 2025-2026 financial year each penalty unit is $203.51.  

The court must also cancel and disqualify your driver licence after being found guilty:

• A first offence carries a minimum licence disqualification of 2 years.

• A subsequent offence carries a minimum disqualification period of 4 years.

The court can impose longer periods off the road but not shorter periods.  It is important to have a lawyer consider the brief for any defences.  The consequences of a refusal offence can be significant. 

By contrast, a person who cooperates with a breath test and is charged with drink driving as a first time offender would only face a minimum two-year disqualification for a blood alcohol concentration (BAC) as high as 0.24.

Wrapping Up

Penalties for refusing to submit a breath test can be severe including fines, lengthy licence disqualifications, and for repeat offenders, imprisonment.

If you have been charged with refusing to submit a breath test in Victoria, it is worth consulting an experienced traffic law professional to understand your options and possible defences during what can be an extremely stressful time.