Refusing a breath or blood test will not help you avoid a drink driving charge. Instead, it creates a serious offence in its own right. In fact, the courts punish it at least as severely as a high-range reading. Meanwhile, many people refuse in a moment of panic at the roadside, without grasping the consequences. McMahon Criminal Defence Lawyers defends these charges at the Ballarat Magistrates’ Court and across Victoria, on fixed fees.
At a Glance
| Offence | Refusing a breath or blood test |
|---|---|
| Law | Section 49, Road Safety Act 1986 |
| Courts treat it as | At least as serious as a high-range reading |
| Licence loss | Mandatory, with a lengthy minimum disqualification |
| Alcohol interlock | Mandatory before you regain your licence |
| Repeat offences | Longer periods, and imprisonment becomes available |
| Court | Magistrates’ Court |
The Offences
The Road Safety Act 1986 requires drivers to comply with lawful testing requirements. Specifically, that covers a preliminary breath test, a sample of breath for analysis, and a blood sample in defined circumstances. Refusing or failing to comply breaches section 49. Furthermore, refusing to accompany police for the purpose of providing a sample also creates an offence.
Why Refusing Does Not Help
Parliament designed the law so that refusing leaves you no better off. Usually it leaves you worse off. For example, the courts treat a refusal at the top of the range. Consequently it attracts the licence disqualification and alcohol interlock consequences of the most serious drink driving offences. Moreover, a lower reading cannot reduce your penalty, because no reading exists. You also lose any argument about the accuracy of the device.
Penalties
A refusal conviction carries substantial penalties. In addition, it brings mandatory licence disqualification for a lengthy minimum period. A mandatory alcohol interlock condition then applies before you regain your licence. Meanwhile, for repeat offences those periods extend significantly, and imprisonment becomes available. We can advise on the exact minimums for your circumstances.
Defending a Refusal Charge
These charges turn heavily on procedure. Above all, the prosecution must prove that the requirement police made of you was lawful. Common issues include:
- Did police make the requirement lawfully? They must follow specific statutory steps. Therefore a defect can defeat the charge.
- Did you actually refuse? Trying genuinely but failing to produce a sample differs from refusing.
- Medical reasons. For instance, a genuine medical inability to provide a sample.
- Did police observe the statutory time limits and procedures?
- Did police properly explain the requirement and the consequences of refusing?
Much turns on exactly what police said and did, and in what order. Consequently these matters reward close analysis of the brief and any body-worn camera footage.
If police have charged you with refusing a test, contact us promptly. See also our drink driving page.
Frequently Asked Questions
Is it better to refuse a breath test than blow over?
No. Refusing creates a serious offence in its own right. In fact, the courts treat it at least as severely as a high-range reading, with lengthy mandatory disqualification and a mandatory alcohol interlock. Moreover, it removes any argument about the accuracy of a reading, because no reading exists. In short, refusing almost always leaves you worse off.
What if I cannot provide a sample for medical reasons?
A genuine medical inability differs from a refusal, and can found a defence. However, the circumstances need proper evidence. Therefore tell your lawyer immediately if a medical condition affected your ability to provide a sample.
Can police require me to go with them for a test?
Yes. In defined circumstances the Road Safety Act lets police require a driver to accompany them to provide a sample. Refusing that requirement also creates an offence. However, police must still make the requirement lawfully, and follow the statutory procedures.
Can I defend a refusal charge?
Yes. These charges depend heavily on police following specific statutory procedures. Therefore a defect in how they made the requirement can defeat the charge. Other issues include whether you genuinely refused or simply could not comply, and whether police properly explained the consequences.
Will I lose my licence for refusing a breath test?
Yes, on conviction. A refusal attracts mandatory licence disqualification for a lengthy minimum period. In addition, a mandatory alcohol interlock condition applies before you regain your licence. The exact periods depend on your circumstances and any prior offences.
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A refusal charge brings the most serious drink driving consequences. Contact us promptly for a free, confidential consultation.
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