There are so many reasons in Victoria to celebrate. As a vibrant community with so many cultural and sporting events, many people celebrate in our fantastic array of bars, restaurants and clubs. Sometimes a glass of champagne turns into two or three or four, which is fine – unless you intend to drive home. Most of us know the consequences of being caught drink driving. Most particularly, you will lose your licence for a period of time. The length of the disqualification depends on your blood alcohol reading and whether you have any priors for drink driving in the last ten years.
What Is the Offence of Refusing a Breath Test?
Many Victorians are unaware of the consequences of being pulled over by Police, asked to perform a breath test for the presence of alcohol and refusing. This article will explain what constitutes a refusal and the consequences for doing so. The offence of refusing a breath test is dealt with seriously in the law. The reason for this is that, if you refuse to undergo a breath test, the Police members have no power to arrest you nor to stop you from driving (even if they suspect that you are under the influence of alcohol). This means that they are powerless to stop you from driving away and potentially causing a collision which could hurt another person, yourself or damage property.
Mandatory Licence Disqualification Periods
If you are found to have refused to undergo a breath test, the mandatory minimum disqualification period for your licence is two years. For a subsequent offence, it is four years. Unlike other offences, such as drink driving, the time period for a subsequent offence isn’t restricted to ten years. For drink driving, pursuant to section 50AA of the Road Safety Act, if you have a prior drink driving matter which is more than ten years old, it isn’t taken into account as a prior for the purposes of the mandatory minimum disqualification period. However, the offence of refusing a breath test isn’t included in section 50AA, so even if you have a prior finding of guilt or conviction for refusing a breath test, which is over 10 years’ old, you can still be sentenced to the increased disqualification period of four years for a subsequent offence. The Magistrate has no discretion with respect to mandatory minimum disqualification periods. Accordingly, regardless of how much you need your licence, you will still have to be sentenced to the mandatory minimum disqualification period for the offence.
Why Refusing a Breath Test Can Be Worse Than Drink Driving
Parliament has mandated these long disqualification periods for the offence of refusing a breath test to deter people from refusing to undergo breath tests and to encourage people to do so when they are asked. Significantly, the disqualification period for refusing a breath test is longer than most of the mandatory minimum disqualification periods for drink driving offences (and represent the highest mandatory disqualification periods for any drink drive offence).
For example, if you were to return a low to moderate blood alcohol reading (but over .05BAC) you could expect to receive a disqualification period of between 3 months and 12 months for a first offence. It is only in circumstances where you return a really high reading (such as .24BAC or more) would you receive a two year disqualification of licence for a first offence. It is important that you know this because Police do not need to explain to you the consequences for refusing a breath test, even though they almost always do.
When Can Police Require a Breath Test?
Police have the power to require you to undergo a breath test if:
- You are found to be driving a motor vehicle;
- You have been stopped at a preliminary breath testing station;
- The Police officer believes on reasonable grounds that you have driven or been in charge of a motor vehicle within the last 3 preceding hours, where that vehicle has been involved in an accident;
- The Police officer believes on reasonable grounds that, with the last preceding 3 hours, the vehicle was involved in an accident but it has not been established which of the occupants was in charge of or driving the vehicle at the time. In those circumstances, Police have the power to require all of the occupants to undergo a breath test.
In circumstances where Police intercept you whilst you are driving on a road or highway, they do not need to provide a reason why they pulled you over. They do not need to have any kind of probable cause or suspicion that you have committed an offence or are over the blood alcohol limit. If you are driving a car, they have the power to pull you over. The Police have the power to require you to undergo a breath test any time within three hours of you being observed driving a motor vehicle.
What Does “Refusing a Breath Test” Actually Mean?
So, what does refusing a breath test look like? Refusal can either be by words or conduct. However, the refusal has to be conveyed knowingly and wilfully. If the accused doesn’t speak English and doesn’t understand the request, it cannot be considered a knowing refusal. Similarly, if the accused has the defence of mental impairment, that can also be used to defend against the charge of refuse breath test.
However, if you are asked to undergo a breath test, understand what is being requested of you and refuse to do so by saying “no”, not participating in the breath test or leaving the scene, that is a refusal. There have also been cases where individuals have been found guilty of refusing a breath test because they blew into the alcometer but in such a way that there wasn’t sufficient breath to conduct the test. Significantly, it is still a refusal if you say “no” initially but later agree and comply. The offence is made out as soon as you refuse, regardless of whether you later participate in a breath test.
Immediate Licence Suspension and Further Consequences
Having refused a breath test, Police can charge you with the offence and, importantly, suspend your licence as soon as the charges are served upon you. So, having refused the breath test, you will find yourself unable to drive very quickly! If you drive whilst suspended, this is also an offence which carries penalties including imprisonment. Most of us need our driver’s licences in order to function in our day to day life, whether that is going to work, the shops, conveying children around, attending on elderly relatives or simply socialising with others. Losing your licence can have a huge impact on your life! You will be required to rely on others to drive you around, spend a fortune on Ubers and be reliant on public transport for at least two years.
A Practical Word of Advice
So, if you want our advice, if you are going to have a drink, pay for one Uber now. It is better than paying for countless Ubers later!
If you are facing a charge for refusing a breath test, or any drink or drug driving offence, speak to an experienced criminal lawyer before attending court. Early advice can help you understand your position, protect your rights, and ensure the best possible outcome in a situation where the law allows very little flexibility.
Contact our team of driving offence lawyers to arrange confidential legal advice and discuss your options before it’s too late.
