Have you been Charged with Refusing to Undergo a Preliminary Breath Test?

What Does Refusing to Undergo a Preliminary Breath Test Mean?

Refusing to undergo a Preliminary Breath Test (PBT) is an offence under section 49(1)(c) of the Road Safety Act 1986 (RSA). Police officers have the power to request a PBT if they have reason to believe a person driving or in control of a motor vehicle may be under the influence. The PBT requires the person to exhale continuously into a breathalyser, which provides a Blood Alcohol Content (BAC) reading.

Under section 49(1)(c), you can be charged for refusing to undergo a PBT, even if the officer does not have the breathalyser at the time of the request.

Key Questions to Consider

If you’ve been charged with refusing to undergo a PBT, consider the following:

• Did you follow the police instructions but are being accused of not complying?
• Did you refuse the PBT when requested?
• Was there a valid reason for not complying with the police?
• Did the police follow the correct procedures outlined in section 53 of the RSA?
• Do you have a history of similar behaviour?
• What were the circumstances at the time of the offence?

What Must the Prosecution Prove?

To secure a conviction under section 49(1)(c), the prosecution must demonstrate that:

1. You were driving or in control of a motor vehicle.
2. You were in control of the vehicle within the last 3 hours.
3. A police officer or authorised person requested you to undergo a PBT.
4. You refused the test after being warned of the consequences.

Can You Plead Not Guilty to Refusing a Breath Test?

There are instances where a PBT may be considered unlawful or inadmissible in court. Some of these include:

• Time Limit: The test must be conducted within 3 hours of you being in control of a vehicle. Although police may attempt to estimate BAC levels after this timeframe, such evidence cannot be used to prove that you were driving under the influence.
• Private Property: If a PBT is requested while you are on private property, and you revoke permission for the police to be on the premises, they cannot continue their actions. Refusing a PBT in this situation may not result in charges.
• Failure to Warn of Consequences: If the officer did not inform you of the consequences of refusing the test, the demand may be unlawful.

While it is possible to plead not guilty, these cases are complex. Police often wait until the last moment before deciding whether to withdraw the charges. Engaging experienced traffic lawyers, like the team at MK Law, can improve your chances of a favourable outcome.

Where Will Your Case Be Heard?

Charges of refusing to undergo a PBT are heard in the Magistrates’ Court of Victoria.

Penalties for Refusing a Preliminary Breath Test

If convicted of refusing a PBT under section 53, the penalties are:

• First Offence: A fine of up to 12 penalty units.
• Second Offence: A fine of up to 120 penalty units or 12 months’ imprisonment.
• Third or Subsequent Offence: A fine of up to 180 penalty units or 18 months’ imprisonment.

In addition, under section 50(1B), if you are convicted or found guilty of refusing a PBT under section 49(1)(c), the court must suspend your driver’s licence or learner permit and disqualify you from driving for:

• 2 years for a first offence.
• 4 years for any subsequent offence.

What Should You Do Next?

Facing a charge for refusing a breath test can be daunting. It’s crucial to seek legal advice to understand your rights, assess your options, and develop a strong defence strategy. Contact the team at MK Law for expert assistance. Ring 1800 130 120 to engage with expert lawyers who can represent you to receive the best success in the circumstances.