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Refuse Breath Test

In Victoria, Refuse Breath Test is found in section 49(1)(C) of the Road Safety Act 1986. It is a criminal offence that is committed by a person who refuses to undergo a preliminary breath test when required to do so.

Have you been charged with Refuse Breath Test? If yes, one of our experienced criminal defence lawyers can help you and answer your important questions. They can tell you what the likely penalties are, your prospects of successfully defending the charge, what you should do to prepare for Court.
 
Our lawyers have enormous experience in representing people charged with Refuse Breath Test. Our lawyers are best placed to give you realistic advice.

Police Interview
Normally with an allegation of Refuse Breath Test, the Police will conduct a field interview. Despite this, you are still given an opportunity to call a lawyer and receive legal advice.  You should get in touch with one of our lawyers who can advise you on how to handle the interview. It is worth remembering that the Police will use anything you tell them to compile their case against you. The Police interview is not the time to explain your side of the story and hope the Police will realise they have made a mistake.

Pleading Not Guilty
A lot of the time, there the charge of Refuse Breath Test arises because of a misunderstanding. If you intend to plead not guilty to this charge, it is key that you get in touch with our firm to see one of our specialised lawyers. Our lawyers are pro-active and will consider if there is body worn camera footage that needs to be requested, if there is dash camera footage which needs to be protected or if there are potential witnesses who Police have not spoken to yet.

Pleading Guilty
If you decide to plead guilty to Refuse Breath Test, our lawyers can represent you at Court to get the best possible outcome. The charge of Refuse Breath Test carries mandatory penalties which the Magistrate must impose. However, the Magistrate does have discretion to increase your time off the road, the financial penalty and whether to record a conviction or not. Our lawyers will add value to your plea of guilty to Refuse Breath Test by distinguishing you from the many other people who appear before the Court pleading guilty to traffic offences.

The Magistrate you appear before can hear up to 20 to 30 pleas of guilty to driving offences on the same day that you appear in Court where they hear the same thing over and over. Our lawyers will prepare your case before the plea hearing so you have good material to present the Court.
The charge of refusing a breath test drink driving is the sort of charge regularly heard in the Magistrates’ Court.
 
Examples of Refuse Breath Test
  • You have a few drinks with your friends and drive home. On the way home, the police stop you and request that you undergo a breath test. You are aware that you’ll probably be over the legal limit, so you refuse.
What is the legal definition of Refuse Breath Test?
A person is guilty of an offence if he or she refuses to undergo a preliminary breath test in accordance with section 53 when required under that section to do so.

Legislation
The legislation for this offence can be found on section 49(1)(c) of Road Safety Act 1986.

Elements of the offence
To prove this charge, the Police must show that:

  1. The accused refused to undergo a preliminary breath test…
  2. By a prescribed device…
  3. In accordance with section 53.
Did you refuse to undergo a preliminary breath test?
A person required to undergo a preliminary breath test must do so by exhaling continuously into the device to the satisfaction of the police officer or the officer of the Corporation or of the Department.1

A person is not obliged to undergo a preliminary breath test if more than 3 hours have passed since the person last drove, was an occupant of or was in charge of a motor vehicle.2

“Were you asked to undergo a breath test within 3 hours of driving?”
Did you refuse to exhale into a prescribed device?
A person may be convicted under this section even if a prescribed device was not presented to them at the time they were requested to undergo the breath test, or a prescribed device was not available.

Was the request for the breath test made in accordance with section 53?
Under section 53 of the Road Safety Act 1986, a police officer may at any time require:

  1. any person he or she finds driving a motor vehicle or in charge of a motor vehicle; or
  2. the driver of a motor vehicle that has been required to stop, and remain stopped at a preliminary testing station under section 54(3); or
  3. any person who he or she believes on reasonable grounds has within the last 3 preceding hours driven or been in charge of a motor vehicle when it was involved in an accident; or
  4. any person who he or she believes on reasonable grounds was, within the last 3 preceding hours, an occupant of a motor vehicle when it was involved in an accident, if it has not been established to the satisfaction of the police officer which of the occupants was driving or in charge of the motor vehicle when it was involved in the accident…
…to undergo a preliminary breath test by a prescribed device.


[1] Section 53(3) of the Road Safety Act 1986.
[2] Section 53(4) of the Road Safety Act 1986.

 
Defences to this can be a factual dispute or that when the person was asked to undergo a preliminary breath test it more than 3 hours had passed since the person last drove, was an occupant of or was in charge of a motor vehicle.

You should ring us and discuss your case if you have been charged. Deciding on whether to plead guilty or not has important implications for you and should be made after proper discussions with a criminal lawyer.

Questions in cases like this
  • Were you asked to undergo a preliminary breath test?
  • Did you refuse?
  • Was the request made within 3 hours of you being in charge of a motor vehicle?

There is a maximum penalty of 12 penalty units for anyone found guilty of refusing a breath test drink driving (s49(1)(c) of the Road Safety Act 1986) as a first offence; 120 penalty units or a 12 month imprisonment for a second offence and 180 penalty units or 18 months imprisonment for a subsequent offence.

New regulations that came into effect from 31 January 2018 mean that Victorian offenders will face Victorian driving penalties should they be caught interstate.

Sentencing in the Magistrates’ Courts
From 1 July 2013 to 30 June 2016, there were 532 cases (546 charges) of Refuse Preliminary Breath Test that were heard in the Magistrates’ Courts of Victoria. Most of these cases resulted in financial penalties (56.8%) but there were also many other sentencing forms imposed:

  • Community Correction Order – 19.0%
  • Imprisonment – 13.2%
  • Wholly Suspended Sentence – 6.0%
  • Adjourned Undertaking/Discharge/Dismissal – 3.2%
  • Partially Suspended Sentence – 1.5%
  • Youth Justice Centre Order – 0.2%
  • Other – 0.2%
Of the prison terms imposed, the longest was somewhere between 12 and 18 months (8.6% of the cases that led to imprisonment). But the majority of those who were sentenced to prison received a term that was between 3 and 6 months (44.3%).

Of the fines imposed, the amount frequently imposed was somewhere between $1,000 and $2,000 for aggregate (31.9% of the charges that resulted in fines) and between $500 and $1,000 for non-aggregate (17.5%). The highest amount imposed was between $4,000 and $6,000 but this was applied in only 0.6% of the charges that led to fines.3

Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.4


[3] SAC Statistics – Road Safety Act 1986 (Vic) : s 49(1)(c) – refuse preliminary breath test < https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/86_127_49_1_c.html >
[4] Suspended Sentence | The Sentencing Advisory Council < https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence >