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Refusal or failure to give a breath test: Drink Driving

A breath analysis test is conducted using a portable device often called the breathalyser. This device measures the approximate Prescribed Content of Alcohol (PCA) in the subject’s blood. This test is used as evidence for the prosecution of a drunk driving traffic offence. This test is administered by a law enforcement officer or an authorised government official. These officers can randomly stop drivers order to conduct breath analysis tests. Sometimes they may be conducted if a driver is seen to be driving erratically, involved in an accident, randomly as part of a ‘booze bus’ operation, on any driver who is randomly pulled over by an officer, or on a person sitting in the driver’s seat with the ignition on, or a driver who is actively supervising or instructing Learner driver who was driving.

Whenever a police officer or an authorised person asks for a breath analysis test, it is mandatory to submit to the test. Refusal or failure to do so is considered a serious traffic offence. You cannot raise the argument of seeking legal advice before submitting to the test, and if you were to push that point, that action itself constitutes the ‘refusal’ to undertake the test.

Refusing to take the breath analysis test is considered to be a major offence, and prosecution can lead to penalties equivalent to the high range PCA, which is the highest level of drink driving.

Penalties to refusal or failure to give a breath test for first-time offenders are:

  • A fine of up to $3,300
  • A custodial sentence of up to 18 months
  • Disqualification from driving for at least 1 year and automatic disqualification of 3 years, with an interlock order at the tail end of the disqualification period.

For subsequent offences within 5 years, the penalties are as follows:

  • A fine of up to $5,500
  • A jail sentence of up to 2 years
  • Disqualification from driving for at least 1 year and automatic disqualification of 3 years, with an interlock order at the tail end of the disqualification period.

Possible defence

The penalties are imposed only after successful prosecution in court. A good traffic lawyer can be very helpful in mounting a successful defence. If the charges are successfully defended against, the court may dismiss them, and the defendant is found not guilty.

If you are charged with refusing to take the breath test, the offence can be defended in line with the following circumstances:

  • A medical reason prevented you from taking the test. An example is that if you meet with an accident while driving and have to be admitted to the hospital with major injuries, then submitting to the breath test may not be possible. However, in such cases, the police may seek a blood sample for alcohol level testing.
  • If you were not driving, about to drive or not instructing or supervising the driver of your vehicle. Mere passengers are not required to be subjected to breathe tests. However, you must be able to prove that you were just a passenger and not the driver who swapped placed with the passenger prior to the testing.
  • If you are at your home, the police are not authorised to subject you to the breath test.
  • If 2 hours or more have passed since you were driving, then the breath test is not mandatory. If you are able to prove that more than 2 hours had passed since you were last driving, your refusal to take the breath test is not an offence.


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