Have you been Charged with Refusing to Undergo a Preliminary Breath Test?
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Driving Under the Influence (DUI)
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Exceeding the Prescribed Concentration of Alcohol (“ PCA ”)
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Refusing to Undergo a Preliminary Breath Test
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Refuse or Fail to Comply with a Request or Signal to Stop
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Refusing to Comply With Directions Made by Police Regarding
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Exceeding the Prescribed Concentration of Alcohol (Breath Analysis) within 3 Hours
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Driving a Motor Vehicle With a Blood Sample Indicating a Prescribed Concentration of Alcohol
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Expca of Drugs and Alcohol Within 3 Hours of Driving or Being in Charge
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Consume Intoxicating Liquor While Driving
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Consuming Intoxicating Liquor While Supervising Driving a Learner Driver
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Breach of Alcohol Interlock Condition
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:
- You were driving or in control of a motor vehicle.
- You were in control of the vehicle within the last 3 hours.
- A police officer or authorised person requested you to undergo a PBT.
- 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.
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Driving Under the Influence (DUI)
-
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
-
Refusing to Comply With Directions Made by Police Regarding
-
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
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St Kilda, Victoria 3182
1800 130 120
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Michael Sunderland from MK Law handled my matter with professionalism, respect, and genuine care. It was clear that he genuinely cared about gett... Read MoreMichael Sunderland from MK Law handled my matter with professionalism, respect, and genuine care. It was clear that he genuinely cared about getting the best result possible, and his preparation and courtroom presence reflected that commitment. Michael’s professional demeanour and respectful conduct, both with me and within the court, gave me the utmost confidence I was in the right hands. He clearly explained the process, kept me informed, and made me feel confident throughout. The outcome was far better than I expected, thanks to his expertise and strategic approach. I’m truly grateful for his support and wouldn’t hesitate to recommend him. Read Less55/5
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I cannot thank Michael Sunderland from MK Law enough for the way he handled my case. From the very beginning, Michael was highly professional, kno... Read MoreI cannot thank Michael Sunderland from MK Law enough for the way he handled my case. From the very beginning, Michael was highly professional, knowledgeable, and thorough in every aspect of the process. He took the time to explain everything clearly, which gave me great comfort and confidence throughout what could have been a very stressful time. Michael’s expertise and guidance reassured me that I was in the best hands, and his calm and confident approach made a huge difference to my peace of mind. He was always approachable, responsive, and dedicated to achieving the best possible outcome for me. I would highly recommend Michael Sunderland to anyone seeking a lawyer who is not only exceptionally skilled but also genuinely cares about his clients. Read Less55/5
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I would like to sincerely thank Ashleigh for her exceptional support and professionalism during a very difficult time in my life. From the first m... Read MoreI would like to sincerely thank Ashleigh for her exceptional support and professionalism during a very difficult time in my life. From the first meeting, she was calm, respectful, and clear about what I could expect. She never judged me, always listened carefully, and explained every step of the legal process in a way that made me feel supported and confident. Ashleigh handled my case involving a traffic offence with care and honesty. She gave me solid advice, helped me prepare all the right documents, and even guided me on how to speak respectfully in court. Because of her help, I was able to present myself properly before the judge and achieve a much better outcome than I expected. What really stood out to me was her genuine concern for my future. She didn’t treat me like “just another case.” Ashleigh is not only a skilled lawyer — she is also a kind person who truly cares about her clients. I highly recommend Ashleigh to anyone in need of legal help. She is trustworthy, professional, and goes above and beyond for her clients. Thank you again for everything. Read Less55/5
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I would like to highly recommend Michael Sunderland. Michael took on my matter from another lawyer that was not able to represent me at the time. ... Read MoreI would like to highly recommend Michael Sunderland. Michael took on my matter from another lawyer that was not able to represent me at the time. Michael was well prepared, taking onboard all the information, with communication all the way. He clearly explains all the outcomes and was by my side every step of the way. A genuine caring lawyer that has your best interest. Read Less55/5
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.
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