Author: Kristina Kothrakis
Practice area: drug driving offences
Kristina is a Director at Doogue + George and an LIV Accredited Criminal Law Specialist with over 18 years of criminal defence experience. Her depth of experience in this area means clients receive accurate, considered advice.
View full profile →Kristina authored this content and last revised it for accuracy on 6 August 2026.
What is the offence of Refuse Drug Test (Drug Driving)?
In Victoria, Refuse Drug Test (Drug Driving) is an offence under section 49(1)(ca) of the Road Safety Act 1986. It involves refusing to undergo an assessment of drug impairment when required under section 55A, or refusing to comply with another requirement made under section 55A(1).
Key points
- What must be proved: The accused refused the assessment when required under section 55A, or refused to comply with another requirement made under section 55A(1).
- Type of conduct: Refusing an assessment of drug impairment, including refusing further testing when required.
- Usual court level: Magistrates’ Court.
The maximum penalty for Refuse Drug Test (Drug Driving) is 12 penalty units ($2,509.20 as at 2026–27) (first offence); 120 penalty units ($25,092.00 as at 2026–27) or 12 months’ imprisonment (second offence); 180 penalty units ($37,638.00 as at 2026–27) or 18 months’ imprisonment (subsequent offence). A licence disqualification is imposed for at least 2 years for first offences.
Common defences may include A factual dispute, or that more than 3 hours had passed since the person last drove, was an occupant of, or was in charge of a motor vehicle when asked to undergo the assessment of drug impairment.
Note that if the Police request that you undergo drug test, you have the option to refuse a drug test. However you can be charged for this. There can be more serious consequences for refusing to do a drug test rather then returning a positive drug test. The Police have significant discretion available to them when requesting for a drug test.
Have you been accused of Refuse Drug Test – Drug Driving? If you have, make a time to see one of our specialised criminal defence lawyers who have represented many people charged with Refuse Drug Test.
Our lawyers’ enormous experience in representing people charged with Refuse Drug Test. Our lawyers know what works in Court and can advise you on what you can expect.
Police Interview
If you are accused of Refuse Drug Test, the Police normally conduct a field interview on the side of the road or at a booze bus. You are still given an opportunity to call a lawyer and receive legal advice. You should call our firm and speak with one of our lawyers who can advise you on how to handle the interview.
It is important to remember that the Police take careful notes of everything said and will use anything you tell them to assist their case. The Police interview is not the time to explain your side of the story and hope the Police will realise there is a misunderstanding. In a case like this, the Police will just think you are being uncooperative because you have something to hide and they will not take anything you say seriously.
Pleading Not Guilty
Generally, the charge of Refuse Breath Drug Test is laid because of a misunderstanding. Our lawyers can give you realistic advice on your prospects of having the charge withdrawn or an acquittal. Our lawyers are pro-active and will ask:
- Is there body worn camera footage?
- Is there dash cam footage that can help?
- Are there witnesses who Police have not spoken to?
This information can lead to charges being knocked out.
Pleading Guilty
If you decide to plead guilty to Refuse Drug Test, our lawyers can represent you on a plea of guilty to get the best possible outcome in Court. The charge of Refuse Drug Test carries mandatory consequences on your driver’s licence which the Magistrate must impose. However, the Magistrate has discretion to:
- go above the mandatory minimum and give you more time off the road,
- impose a financial penalty, and
- whether to record a conviction or not.
Our lawyers will add value to your plea of guilty to Refuse Drug Test by preparing your case well before Court and directing you to do courses which show the Magistrate you have learnt your lesson. It is worth remembering that the Magistrate you appear before can hear upwards of 40 driving offences that day. Our lawyer will prepare your case so that you get the best outcome.
Sentencing
Sentencing in the Magistrates’ Court of Victoria
Source: Sentencing Advisory Council of Victoria (SACStat), Road Safety Act 1986 (Vic) s 49(1)(ca) — 60 charges across 59 cases, Magistrates’ Court, 1 July 2020 – 30 June 2023.
| Sentencing outcome | % |
|---|---|
| Fine | 60.0% |
| Community Correction Order | 16.7% |
| Adjourned Undertaking | 15.0% |
| Imprisonment | 8.3% |
These figures indicate that while a custodial sentence is possible, it is not the usual result. Most cases are dealt with by financial penalties or community-based orders. The outcome will depend on the circumstances of the offence, including the driver’s prior record and the broader context of the incident.
Which court will the case be heard in?
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
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?
Maximum penalty for section 49(1)(ca) of the Road Safety Act 1986
There is a maximum penalty of 12 penalty units ($2,509.20 as at 2026–27) for anyone found guilty of refusing a drug test drug driving (s49(1)(ca) of the Road Safety Act 1986) as a first offence; 120 penalty units ($25,092.00 as at 2026–27) or a 12 month imprisonment for a second offence; and 180 penalty units ($37,638.00 as at 2026–27) 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.
Other important resources
- SAC Statistics – Road Safety Act 1986 (Vic) : s 49(1)(ca) – refuses to undergo an assessment of drug impairment
- Drink Driving Lawyers: Refuse drug test – drug driving
