Have you been charged with refusing to comply with Directions made by Police Regarding a Breath Analysis?
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What does it mean to refuse to comply with directions regarding a breath analysis?
Refusing to comply with directions made by police regarding breath analysis is an offence under sections 49(1)(e) and 55 of the Road Safety Act 1986 (“RSA”). This applies to individuals driving or in charge of a motor vehicle who refuse to comply with a lawful requirement made by a police officer.
Relevant Directions for Breath Analysis
The directions to undergo breath analysis for blood alcohol concentration (“BAC”) that must be followed are specified under sections 55(1), (2), (2AA), (2A), and (9A) of the RSA.
Forms of Refusal
A refusal to comply with a requirement made by a police officer can take two forms:
- Verbal refusal: Expressing refusal through words.
- Conduct-based refusal: Failing to accompany a police officer to provide a sample or being physically uncooperative.
Section 55(1): Positive or Refusal to Take Preliminary Breath Test
If a person tests positive or refuses to undergo a preliminary breath test, section 55(1) allows a police officer to:
- Request the individual to undergo further breath analysis.
- Escort the person to a police car or station to provide a breath sample.
Section 55(2) and 55(2AA): Reasonable Belief of Alcohol/Drug Influence
Under sections 55(2) and 55(2AA) of the RSA:
- A police officer must have a reasonable belief that the individual was driving under the influence of alcohol or drugs, or exceeded the legal limit, within the past 3 hours.
- The officer can require the individual to undergo an assessment, provide a breath analysis sample, or escort them to a police car or station for testing.
- The officer can also instruct the person to remain where they are until directed to leave.
Section 55(2A): Breathalyser Malfunction or Insufficient Sample
If a police officer believes that the breathalyser device malfunctioned or the sample was insufficient, section 55(2A) allows the officer to:
- Request the person to provide an additional sample, such as due to equipment malfunction or insufficient exhaled air.
Section 55(9A): Blood Sample Collection
Under section 55(9A) of the RSA:
- The driver may be required to provide a blood sample or be escorted to a place where the sample can be taken.
- The person must remain at the location until the sample is taken, or 3 hours have passed.
- The police officer must document the reason for the request and disclose the legal basis for the requirement.
What does the prosecution need to prove?
- You were driving or in charge of a motor vehicle?
- A police officer or authorised person placed a demand on you to provide a breath sample,
- You refused to comply with that demand.
Factors to consider:
Should I plead guilty or not guilty?
- What defences do I have available to me to minimise my penalty?
- Have three hours lapsed since I last drove the motor vehicle?
- Do you have previous offences exhibiting similar behaviour?
What defences are available?
- Police made the demand whilst being trespassers on private property: Whether police had lawful power to remain on your private property to make a demand can often be a complex area of law. Withdrawing a police officer’s implied licence to remain on your property can be made explicitly or implicitly by conduct.
- Unable to physically comply: Vulnerable persons, the elderly or those in wheel chairs may be physically unable to accompany police back to a place for the purposes of a breath test if the only means available at the time was the pod at the rear of the police vehicle. If police have not provided you with a safe means of transport this may be a defence depending on the circumstances.
- Being unaware of the demand: In years gone by an accused was entitled to an acquittal if the formalities of the demand were not properly made out, for example by being informed of the need to remain at the police station for up to 3 hours. However today, case law has narrowed this requirement. There are still cases where the evidence may prove that you were not made fully aware of a need to comply with the police demand to accompany.
Where will my case be heard?
Offences involving alcohol or drugs, specifically for refusing to comply with a requirement will be adjudicated in the Magistrates Court of Victoria.
Penalties for Refusing to Comply with a Requirement
If you are found guilty of an offence involving alcohol or other drugs for refusing to comply with a requirement, the maximum penalties are as follows:
- First Offence: A fine of up to 12 penalty units.
- Second Offence: A fine of up to 120 penalty units or imprisonment for up to 12 months.
- Third or Subsequent Offence: A fine of up to 180 penalty units or imprisonment for up to 18 months.
Additionally, under section 50(1B), if convicted of an offence under section 49(1)(e) for refusing to comply with a requirement made under section 55, the court is required to:
- Suspend your driver’s licence or learner permit, and
- Disqualify you from driving for a minimum period of:
- 2 years for a first offence.
- 4 years for any subsequent offence.
These disqualification periods are mandatory minimums, meaning the Magistrate must disqualify you from driving for at least these periods. However, they have the discretion to impose longer disqualification periods, especially for repeat offenders.
Common questions about refusing a breath test
No. Under section 53 of the Road Safety Act 1986, police can require a roadside preliminary breath test at any time from anyone they find driving or in charge of a motor vehicle. They do not need to suspect you have been drinking, and refusing is an offence. If you refuse, or the test shows alcohol, police can then require a breath analysis, and refusing that is a separate offence.
If you were driving and are found guilty, the court must cancel your licence and disqualify you for at least 2 years. As a general rule, section 49 of the Road Safety Act 1986 sets these penalties for a driver who refuses either the roadside test or a breath analysis:
| Offence | Maximum penalty | Minimum disqualification |
|---|---|---|
| First | 12 penalty units ($2,509.20) | 2 years |
| Second | 120 penalty units ($25,092) or 12 months in prison | 4 years |
| Third or later | 180 penalty units ($37,638) or 18 months in prison | 4 years |
Any new licence you get afterwards must have an alcohol interlock for at least 6 months, or 4 years if it is not your first offence. Police can also suspend your licence from the time you are charged, and you can appeal that suspension.
Yes, for up to 3 hours after you last drove, were in charge of the vehicle or travelled in it. Under section 55 of the Road Safety Act 1986, an officer who requires a breath analysis can tell you to go with police to a police station, booze bus or police car. You then have to stay until you have given the sample and received your certificate, or until those 3 hours are up. Refusing to go or to stay is an offence.
Refusing any requirement police make for a breath analysis, including a request for a further sample when the instrument could not read the first one, is an offence under section 49 of the Road Safety Act 1986. At the roadside, you must breathe out continuously into the device until the officer is satisfied. If you refuse or fail to, police can require a breath analysis, and the instrument needs the same continuous breath.
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- Exceeding the Prescribed Concentration of Alcohol (“ PCA ”)
- Refusing to Undergo a Preliminary Breath Test
- Refuse or Fail to Comply with a Request or Signal to Stop
- Exceeding the Prescribed Concentration of Alcohol (Breath Analysis) within 3 Hours
- Driving a Motor Vehicle With a Blood Sample Indicating a Prescribed Concentration of Alcohol
- Expca of Drugs and Alcohol Within 3 Hours of Driving or Being in Charge
- Consume Intoxicating Liquor While Driving
- Consuming Intoxicating Liquor While Supervising Driving a Learner Driver
- Breach of Alcohol Interlock Condition
What happens next?
Contact MK Law today to get expert legal support for your case involving refusal to comply with a requirement. Our experienced team will guide you through each step, starting with an initial consultation to assess your situation and develop a tailored defence strategy.
We will help you prepare all necessary documentation and evidence, represent you in the Magistrates Court of Victoria, and advocate on your behalf. After the hearing, we’ll review the outcome, advise you on any penalties or appeals, and ensure you comply with court orders. If you need ongoing assistance or have further questions, MK Law is here to provide continuous support and protect your rights. Call 1800 130 120 today.
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