Refusing a Drug Test in Victoria: Potential Penalties Faced

Refusing a drug test in Victoria is a serious offence under the Road Safety Act 1986 (Vic). The law imposes strict penalties for refusal, which can often be harsher than the penalties for drug driving itself. Below is a clear breakdown of the law, the circumstances in which Victoria police can request tests, and the consequences of saying “no”.

When Can Police Request a Drug Test?

Under sections 55D and 55A of the Road Safety Act 1986, Victorian police can require you to undergo oral fluid testing, an impairment assessment, or provide blood/urine samples when:

• You are driving or in control of a motor vehicle.

• You are stopped at a preliminary breath testing station.

• Police reasonably believe you were involved in an accident (either driving or if they don’t know who was driving then an occupant in the vehicle) within the last three hours.

• You are required to provide a breath or blood sample under other provisions of the Act.

Refusal Offences Explained

There are three main refusal offences under section 49(1):

1. Refusing Oral Fluid Drug Testing – s49(1)(eb)

2. Refusing Assessment for Drug Impairment – s49(1)(ca)

3. Refusing Blood or Urine Test – s49(1)(ea)

Refusal means failing to comply with a lawful request, whether by outright refusal or not cooperating with the process.

Penalties for Refusing a Drug Test in Vic

The penalties vary depending on the type of test and whether it’s a first or subsequent offence:

Refusing Oral Fluid Test (s49(1)(eb))

• First offence: Up to 12 penalty units (approx. $2,442) and a minimum mandatory 2-year licence disqualification.

• Second offence: Up to 60 penalty units (approx. $12,210) and a minimum mandatory 4-year licence disqualification.

• Subsequent offences: Up to 120 penalty units (approx. $24,421) and a minimum mandatory 4-year licence loss.

Refusing Drug Impairment Assessment or Blood/Urine Test (s49(1)(ca) & s49(1)(ea))

• First offence: Up to 12 penalty units and a minimum mandatory 2-year licence disqualification.

• Second offence: Up to 120 penalty units or 12 months’ imprisonment, plus 4-year minimum mandatory licence disqualification.

• Subsequent offences: Up to 180 penalty units or 18 months’ imprisonment plus a 4-year minimum mandatory licence disqualification.

(Penalty unit value as of 1 July 2025: $203.51 and increasing each year) 

Defences and Considerations

Possible defences include:

• The request was not made within the required three-hour window.

• The refusal was not conscious or voluntary.

• The requirement does not contain sufficient information.

• Police lacked legal authority to make the request.

However, technical defences are limited, and courts take refusal seriously. Even if no defence applies, negotiating charges can significantly reduce penalties and licence loss.

How can I help you

I will consider the brief of evidence and search for potential defences such as whether you voluntarily refused, whether the requirement was communicated correctly, and whether charges are worded correctly.

If the evidence is strong and there is no choice but to plea guilty, I will assist you by making appropriate submissions to focus on your required outcome.  Often, for refusal and drug driving charges, I am asked to focus on outcomes such as:

·       keeping your licence or not losing it for more than the mandatory period,

·       avoiding a conviction 

·       avoiding a harsher penalty or 

·       Avoiding the court making an order to impound or forfeit your car

I will bring my 25 years in the criminal justice system including 10 years as a criminal defence barrister to tailor my submissions, to the court, to maximise your chances of success.