Something most people experience at some point is being asked by police to do a breath test. Used to analyse a person’s blood alcohol content (BAC), a preliminary breath test (PBT) is done using a handheld device. If this test shows evidence of alcohol higher than appropriate levels, you will be required to accompany the police to the police station for further testing and questioning, and you may be charged with a drink driving offence.
In Victoria, police can ask you to submit a breath test if you’re driving a vehicle and you’ve been stopped at a testing station. Police will routinely request breath tests following a traffic accident, as well as to conduct random testing.
You may be wondering if you can refuse a breath test, but there are some things you should know first as the consequences for refusing can be severe.
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Refusing a breath test
In Victoria, it is an offence to refuse a breath test under the Road Safety Act 1986.
Most licence holders have been asked to have a breath test – either due to being pulled over or at a ‘booze bus station’. Police may ask you to submit a breath test if they have a reasonable belief that you were driving a vehicle that was involved in a car accident within the last three hours, however, you are not required to submit a breath test if it has been more than three hours since you last drove a vehicle.
You could be considered to have refused a breath test if you fail to provide a sufficient sample of breath. This could be caused by breathing too weakly or stopping before an adequate sample is collected.
If you get taken to a police station for refusing a breath test, you will be questioned by the police. While it is an offence to refuse a breath test, it is not an offence to refuse to answer police questioning (other than providing your name and address), and you have the right to remain silent until you’re able to speak with a lawyer.
At the police station, you will be required to provide a sample of breath for analysis on a machine that provides a printout of your BAC. If an insufficient sample is provided, the police will make three attempts to get the necessary sample. If after three attempts there is still an insufficient sample, or you refuse to give the sample, then they may charge you with an offence.
It is important to understand that the police cannot make you submit to a breath test or to accompany them to the station after a breath test – however if you refuse to do so you are likely to be charged. As a result of this somewhat contradictory aspect of the law many people have refused to attend for an evidentiary test at a police station either because they believe they have already done what they have to do by giving the initial breath sample, or because they do not understand that to avoid being charged they must comply with the request.
Penalty
The penalty for refusing a breath test can include a fine for a first offence, while for a second offence you may face a larger fine or imprisonment for up to 12 months. For three or more offences, the jail sentence may increase to 18 months.
If you’re found guilty by the courts for refusing to submit a breath test, you may also face disqualification of your licence for two years for a first-time offence, or four years for repeat offenders.
Before you refuse a breath test, it is worth knowing that the disqualification period for refusing the test is longer than that for a drink driving offence. So it is in your best interest to take the test, even if you’re likely to record a high BAC.
Defence
If you’re charged with refusing a breath test, your drink driving lawyer will work with you on your defence. There may be numerous reasons for a person to refuse a breath test.
In some cases, there is a medical reason for not being able to provide a sample for a breath test. Often if the police believe there is a medical reason for a person not to provide a sample, police may direct the driver to provide a blood sample instead.
If three hours have passed since you last drove, you do not have to submit a breath test. If you can prove more than three hours passed between when you last drove a vehicle and the police requesting a breath test, your lawyer can use that for your defence.
There are numerous procedural steps the police must follow before, during and after conducting a breath test. If these steps were not followed, this may be used for your defence.
Traffic laws and penalties can differ in each state or territory, so if you’re charged with refusing a breath test, it’s important to seek legal advice from experienced criminal lawyers.
