Refuse Breath Test – Is it an Offence & What Happens if You Don’t Take? What are the Penalties?

If you get stopped at a booze bus or pulled over by police in Victoria, you will be required to give police a ‘preliminary breath test’ (PBT). You will be asked to blow continuously into a hand held breathalyser machine which will tell police if there is alcohol on your breath. It can be an offence to ‘refuse a breath test’ (s49(1)(c)).

Police also have the right to breath test you if they believe on reasonable grounds that you have, within the last 3 preceding hours, driven or been in charge of a motor vehicle when it was involved in an accident. You can also be breath tested if you were an occupant in a vehicle if police have not been able to establish who was driving at the time of the accident.

You are not obliged to undergo a preliminary breath test if more than 3 hours have passed since you last drove, were an occupant of a vehicle or were “in charge” of a motor vehicle. You do not have to have been actually driving a vehicle to be able to be breathalysed. You can simply be “in charge” of a motor vehicle. “In charge” of a motor vehicle can include attempting to start a car or if a police officer has a reasonable belief that you intended to start the car.

After you have been breathalysed by the hand-held device, if there is alcohol on your breath, police will ask you to accompany them to the booze bus or back to a police station. They will then ask you to take another test called an ‘evidentiary breath test’ which is another machine that you must blow continuously into which will produce a print out of your blood alcohol content (‘BAC’). This is the reading that will be used as evidence in court. Again, it can be an offence to ‘refuse a breath test’ (s49(1)(ea)).

If you refuse to take either the preliminary (hand held) breath test or refuse to blow into the evidentiary breath test machine at the booze bus or police station, you can be charged with the criminal offence of ‘refuse breath test’. You can also be charged if you repeatedly fail to provide an adequate sample (eg: by blowing too weakly which fails to register a sample). The penalties for this offence are very serious, and often outweigh the penalties than if you just blew a high reading on a first offence.

For a first offence, you can be fined up to 12 penalty units ($1800 fine), for a second offence, you could get a fine up to $18,000 or jail up to 12 months. Importantly however, you must lose your licence for a first offence for 2 years and for a subsequent offence, for 4 years.

If charged with a ‘refuse’ offence, your licence will most likely be suspended on the spot pending the outcome case before the court. You will be served with a notice on the spot known as a ‘section 51’ notice. This means that you cannot drive. There are no exceptions and no special licences that you can get to drive during this time. They don’t exist.

The only way that you can try to keep your licence until your matter is finalised in court is to appeal this ‘section 51’ licence suspension under section 51(10) of the Road Safety Act. You must determine your grounds of appeal, give 14 days notice to the police and prosecution of your appeal and serve documents; then your matter will be listed in the Magistrates Court for hearing. You cannot drive during this 14 day notice period. At the appeal hearing, you must demonstrate “exceptional circumstances” as to why your licence should not be cancelled until your court case is heard (for example: the case against you is weak and you have a real chance of winning). You may want to consider getting a lawyer to assist you with this appeal process.

If you choose not to appeal, or are unsuccessful in appealing the ‘section 51’ suspension, you cannot drive until your court case is finalised. However, any time spent off the road will be credited towards any licence suspension you receive at the end of your case.

If you drive during this period of suspension and are caught, you can be charged with another criminal offence “driving whilst suspended”. These charges can carry maximum penalties of large fines, further licence suspension and even jail.