What Happens if You Refuse a Breath Test in Victoria?

Being asked to undertake a breath test by police can be stressful, particularly during a roadside stop or after an accident.

Many people do not realise that in Victoria, refusing a breath test or breath analysis is itself a criminal offence with significant licence loss implications, even if you were not ultimately over the legal alcohol limit.

At Wilkinson Lawyers, we regularly represent clients charged with drink driving and refusal offences at Ballarat Magistrates’ Court and courts throughout regional Victoria.

Below is a general overview of what happens if you refuse a breath test in Victoria and the potential consequences that can follow.

What is a Breath Test?

Victoria Police have broad powers under road safety legislation to require drivers to:

undergo a preliminary breath test at the roadside; and
in some circumstances, undergo a further evidentiary breath analysis.

Police may require a breath test:

during random roadside testing;
after a collision;
where alcohol consumption is suspected; or
during targeted traffic enforcement operations.

Refusing either the roadside breath test or the later evidentiary breath analysis can lead to criminal charges.

Is Refusing a Breath Test a Criminal Offence?

Yes. In Victoria, refusing to comply with a lawful requirement for a breath test or breath analysis is a criminal offence. Importantly, police do not need to prove that you were over the alcohol limit to prosecute a refusal charge. The offence relates to the refusal itself.

In practice, refusal offences are often treated seriously because the legislation is designed to discourage drivers from avoiding alcohol detection processes.

What Counts as a “Refusal”?

A refusal is not always an outright verbal refusal. Police may allege refusal where a person:

says “no” to testing;
fails to provide a sufficient sample;
repeatedly fails to follow instructions;
interferes with the testing process; or
behaves in a way police interpret as deliberate non-compliance.

Whether a refusal actually occurred can sometimes become an important factual issue in dispute.

What Are the Penalties for Refusing a Breath Test?

The penalties can be significant. For a first offence, the mandatory minimum penalty is 2 years disqualification of your licence. If you have been found guilty of a relevant prior offence (such as drink or drug driving) within the past 10 years, then the licence disqualification doubles to 4 years. This is not-negotiable, these are mandatory penalties set by the law.

This can have major impacts on:

employment;
family responsibilities;
business operations; and
day-to-day life, particularly in regional areas such as Ballarat and western Victoria where driving is often essential.

Will I Automatically Lose My Licence?

In many cases, yes. Victoria has strict mandatory licence loss provisions for refusal offences.

Unfortunately, Victoria does not provide “work licences” or hardship exemptions for drink driving and refusal offences.

This means the court only as a discretion to decide whether or not to disqualify a driver beyond the mandatory minimum periods.

Can You Defend a Refusal Charge?

Yes. Not every refusal allegation is straightforward. Potential issues can sometimes include:

whether the police requirement was lawful;
whether proper procedures were followed;
whether the person understood the instructions;
medical explanations affecting the sample;
communication difficulties;
factual disputes regarding what occurred; or
whether police properly explained the requirements.

At Wilkinson Lawyers, we regularly analyse body-worn camera footage, police statements and notes, testing procedures, timing issues and timing issues to determine whether viable defences or negotiation opportunities exist.

What Happens at Court?

Refusal matters are generally dealt with in the Magistrates’ Court. The first court date is usually a Mention Hearing. Depending on the circumstances, the matter may:

resolve by way of plea;
proceed through negotiations;
involve discussions regarding sentencing outcomes; or
proceed to a contested hearing if the allegations are disputed.

Even where a plea of guilty is entered, careful preparation can still significantly affect:

the overall sentence;
whether a conviction is recorded;
the level of fine imposed; and
broader sentencing outcomes.

Why Early Legal Advice Matters

Many people make the mistake of assuming there is “nothing they can do” because refusal offences carry mandatory penalties. However, obtaining early legal advice can still be extremely important. Proper preparation may assist with:

identifying potential defences;
negotiating disputed facts;
minimising sentencing outcomes;
preparing plea material;
explaining personal circumstances properly before the court; and
protecting your position moving forward.

At Wilkinson Lawyers, Jessica Wilkinson regularly appears in Ballarat and regional Victoria for:

drink driving matters;
licence offences;
refusal allegations;
traffic law proceedings; and
contested hearings

Jessica understands how significantly licence loss can affect employment, family life and financial stability, particularly for clients living and working in regional communities.

Our focus is on providing practical advice, careful preparation and strong representation aimed at achieving the best possible outcome.

Drink Driving and Traffic Lawyer Ballarat

If you have been charged with refusing a breath test or another traffic offence in Victoria, obtaining legal advice early is important. Wilkinson Lawyers regularly represents clients throughout:

Ballarat;
Bacchus Marsh;
Maryborough;
Ararat;
Stawell
Horsham;
Geelong;
Warrnambool;
Bendigo;
Wyndham; and
Melbourne metropolitan courts.

Contact Jess Wilkinson on 0468 364 121 or jess@wilkinsonlawyers.com.au to discuss your matter and obtain advice about the best way forward.