Refuse Breath Test
– section 49(1)(c) of the Road Safety Act 1986
This charge is generally laid in situations where a person refuses to undergo a preliminary breath test when required to do so.
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.
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?
What are some of the possible defences to Refuse Breath Test?
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.
Maximum penalty and court that deals with this charge
There is a maximum penalty of 12 penalty units for anyone found guilty of refusing a breath test drink driving 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.
The charge of refusing a breath test drink driving is the sort of charge regularly heard in the Magistrates’ Court.
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.
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:
- The accused refused to undergo a preliminary breath test…
- By a prescribed device…
- 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:
- any person he or she finds driving a motor vehicle or in charge of a motor vehicle; or
- 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
- 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
- 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.
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
Other important resources
- SAC Statistics – Road Safety Act 1986 (Vic): s 49(1)(c) – refuse preliminary breath test
- Drink Driving Lawyers: Refusing Breath Test
- Refuse Breath Test Offences – New Court of Appeal decisions and their impact on these cases
- Can a Person Refuse a Breathalyser Test? And Other Questions Related to Drink Driving
Case studies related to Refuse Breath Test
- Withdrawing Reckless Conduct Endangering Life and Serious Injury Charges
- Refuse Breath Test and Unlicensed Driving – Withdrawn
 Section 53(3) of the Road Safety Act 1986.
 Section 53(4) of the Road Safety Act 1986.
 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 >
 Suspended Sentence | The Sentencing Advisory Council < https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence >