Refuse Drug Test (Drug Driving)

The offence of refusing a drug test drug driving is the sort of charge regularly heard in the Magistrates’ Court.
 

Examples of Refuse Drug Test (Drug Driving)

• A person fails the initial drug test and then refuses to complete further testing with police.
• Police find the driver of a car that occurred approximately 1.5 hours earlier. They have a reasonable suspicion that he is impaired by drugs. They ask the person to undertake a drug test however that person refuses.

What is the legal definition of Refuse Drug Test (Drug Driving)?

A person is guilty of an offence if he or she— refuses to undergo an assessment of drug impairment in accordance with section 55A when required under that section to do so or refuses to comply with any other requirement made under section 55A(1);

Legislation

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

“Did you refuse a drug test?”

Elements of the offence

In essence to prove this charge the Police must show that the accused refused to undergo an assessment of drug impairment when required to do so or refused to comply with any other requirement made under the section.
 

Defences to this can be a factual dispute or that when the person was asked to undergo an assessment of drug impairment, 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

• Has it been 3 hours since you last drove a vehicle?
• Did police follow the correct procedure when taking a sample?

There is a maximum penalty of 12 penalty units for anyone found guilty of refusing a drug test drug 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. A license disqualification will also be imposed for at least 2 years for first offences.

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

The Magistrates’ Courts of Victoria heard a total of 138 cases (141 charges) of Refuses to Undergo an Assessment of Drug Impairment from 1 July 2013 to 30 June 2016. These cases resulted in: Fine (44.2%), Community Correction Order (26.8%), Imprisonment (21.0%), Wholly Suspended Sentence (6.5%), Youth Justice Centre Order (0.7%), and Adjourned Undertaking/Discharge/Dismissal (0.7%).

The longest prison term imposed was between 18 and 24 months but this was applied in only 6.9% of the cases that led to imprisonment. The most frequently imposed term was between 3 and 6 months (34.5%).

For the fines, the category “$500 < $1,000” was most frequently imposed at 32.1% and 12.4% of the charges that led to aggregate fines and non-aggregate fines respectively. The highest amount imposed was however somewhere between $2,000 and $3,000 (9.9% for aggregate and 1.2% for non-aggregate).¹

Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.²


_{[1] SAC Statistics – Road Safety Act 1986 (Vic) : s 49(1)(ca) – refuses to undergo an assessment of drug impairment < https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/86_127_49_1_ca.html >
[2] Suspended Sentence | The Sentencing Advisory Council < https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence >}