Can I Refuse a Breath Test?

This is one of the most common questions people ask after being stopped by police. In Victoria, the answer is generally no. Refusing to provide a breath test or a breath analysis is a serious criminal offence and, in many cases, carries penalties that are as severe as (or more severe than) those for drink driving itself.

If you have been charged with refusing a breath test or refusing a breath analysis, it is important to obtain legal advice as early as possible. These offences carry mandatory licence consequences and can significantly affect your employment, insurance and future driving privileges.

Can police require me to take a breath test?

Yes.

Victoria Police have broad powers under the Road Safety Act 1986 (Vic) to require drivers to undergo a preliminary breath test.

Police may require a breath test if you are:

• driving a motor vehicle;

• supervising a learner driver;

• involved in a motor vehicle collision;

• stopped at a random breath testing operation; or

• lawfully required to stop by police.

You do not have the right to simply refuse because you are in a hurry, do not believe you have been drinking, or disagree with being tested.

What is the difference between a breath test and a breath analysis?

Many people use these terms interchangeably, but they are different.

A preliminary breath test is the roadside screening test conducted using a handheld device.

If that test indicates alcohol may be present, police will usually require you to undergo a breath analysis using an evidentiary instrument, either in a booze bus or at a police station. The breath analysis provides the reading that is generally relied upon in court.

Refusing either process can amount to a criminal offence.

What happens if I refuse?

If you refuse to provide a breath sample without a lawful excuse, police may charge you with refusing a breath test or refusing a breath analysis.

Depending on the circumstances, the consequences can include:

• a criminal charge;

• a substantial fine;

• mandatory licence cancellation or disqualification;

• alcohol interlock requirements; and

• a criminal record.

In many situations, refusing the test attracts penalties similar to those that apply to drivers with high blood alcohol readings.

Can I refuse because I have asthma or a medical condition?

Sometimes.

A genuine medical condition that prevents you from providing an adequate breath sample may be a defence, but simply claiming to have asthma or difficulty breathing is not enough.

Police are experienced in dealing with drivers who have legitimate medical issues. In some circumstances, they may require an alternative form of testing or obtain medical evidence.

If you suffer from a respiratory condition, it is important to tell police immediately and comply with any lawful directions they give.

What if I genuinely can’t blow hard enough?

The law distinguishes between someone who is unable to provide a sample and someone who is unwilling to provide one.

Police will usually give several opportunities to provide a sufficient breath sample and explain what is required.

If police believe you are deliberately failing to provide an adequate sample, they may allege that you refused the test.

Whether a refusal occurred often depends on the evidence, including:

• police observations;

• body-worn camera footage;

• statements made by the driver;

• any medical evidence; and

• the number of opportunities provided.

Can police force me to take the test?

Police cannot physically force you to blow into the device.

However, refusing to comply with a lawful requirement is itself a criminal offence.

If police suspect drug impairment or other offending, they also have separate powers to require oral fluid testing, blood samples or medical examinations in certain circumstances.

Is refusing better than returning a high reading?

No.

Some people mistakenly believe refusing the test will prevent police from proving they were over the legal alcohol limit.

That is usually incorrect.

Parliament has deliberately created serious penalties for refusal offences to discourage drivers from attempting to avoid testing. In many cases, refusing the test leaves a person in a worse legal position than cooperating.

Every case is different, however, and you should obtain legal advice before assuming what penalties apply to your particular circumstances.

Can I defend a refusal charge?

Yes.

Like any criminal offence, a refusal charge can sometimes be defended.

Potential issues may include:

• whether the police lawfully required the test;

• whether you actually refused;

• whether you were physically incapable of providing a sample;

• whether police complied with the legal procedures; or

• whether there is another lawful excuse recognised by the legislation.

A lawyer can review the police brief, body-worn camera footage and other evidence to determine whether a defence may be available.

Should I speak to a lawyer?

Refusing a breath test is not simply a traffic infringement,it is a criminal offence that can have significant consequences for your licence and your future.

If you have been charged with refusing a breath test or refusing a breath analysis in Victoria, obtaining legal advice early can help you understand the strength of the prosecution case, whether any legal defences are available, and the likely penalties if you plead guilty.

At Wilkinson Lawyers, we regularly advise and represent clients charged with drink driving and refusal offences throughout Victoria. We can explain your options, review the evidence, and work towards the best possible outcome in your case.

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