There are potential consequences, but also defences, when a driver fails to provide a requested breath sample.
The Road Safety Act in Victoria creates three separate offences for failing to take a requested breath test to determine your blood alcohol concentration (BAC) while driving. This article will explain those offences, the consequences of being convicted, and the defences that you can raise.
Section 53 of the Road Safety Act allows a police officer in Victoria to stop any driver in order to administer a preliminary breath test (PBT). An officer can also ask any person who is not driving to submit to a PBT, but only if the officer has reasonable grounds to believe that the person has been driving within the previous three hours. A PBT can also be requested at a testing station (booze bus). The police use a hand-held device to administer a PBT. Refusing to take the test is an offence.
A driver who is signaled to stop at a testing station (booze bus) and fails to stop, or who fails to remain at the testing station as requested, commits an offence.
If a PBT result indicates that a driver is “over the limit,” the driver can be asked to take a more accurate test. That test is usually administered at a police station or in a booze bus. The test is conducted with a device commonly known as a Breathalyzer. Refusing to take the test is an offence.
A first offence conviction of any offence described above is punished by a fine. The driver will also face an immediate driver licence suspension. The court will impose a disqualification from obtaining a licence for at least 2 years.
In addition to a substantially larger fine, a second offence subjects a driver to a sentence of imprisonment of up to 12 months. The maximum sentence increases to 18 months for a third or subsequent offence. A second or subsequent offence subjects a driver to an immediate suspension and a licence disqualification of at least 4 years.
Refusing a breath test consists not only of declining to blow into the tube attached to the device, but also of failing to provide an adequate sample of deep lung air. That can happen if you blow weakly or stop exhaling before the machine registers an adequate sample.
When a refusal is based on a driver’s failed attempt to blow into the machine, the driver has a defence if a medical condition such as asthma prevented the driver from completing the test despite making a good faith effort to comply.
Other substantial reasons for failing to take or complete the test can be offered as a defence to the charge.
A driver has no obligation to take a Breathalyzer test if more than 3 hours have passed since the driver was last driving or controlling a vehicle. The passage of more than 3 hours provides a defence to the charge.
If you are accused of refusing a breath test, you should talk to a lawyer to determine whether you have a defence to the charge.