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Refuse to Give Blood or Urine Sample (Drink Driving)

– section 49(1)(ea) of the Road Safety Act 1986
Police Car
This charge is generally laid in situations where a person refuses to give a blood or urine sample in circumstances where the police believe the person is impaired by drugs or if an accident has resulted in death or serious injury.
Examples of Refuse to Give Blood or Urine Sample (Drink Driving)
  • A person driving a car the police believe to be under the influence of drugs refuses to give a sample of their blood upon police request;
  • A driver of a car that was involved in an accident that resulted in another person’s death refuses to give a blood sample upon police request;
  • A person the police believe to be under the influence of drugs travelling in a car refuses to furnish a urine sample of upon police request.
Questions in cases like this
  • In the case of police suspecting the accused is under the influence of drugs, has more than three hours passed since the accused was driving, an occupant in or in control of a motor vehicle when the accused refuses to provide a sample?
  • In the case of police suspecting that a motor vehicle accident has resulted in death or serious injury, has more than three hours passed since the accident when the accused refuses to provide a sample?
  • Has the accused been found guilty of this offence before?
What are some of the possible defences to Refuse to Give Blood or Urine Sample (Drink Driving)?

In cases where the police suspect a person is under the influence of drugs, it is a defence to this charge if the person has already had a sample of blood taken under Section 55 of the Act (breath analysis) after driving, being the occupant of or being in charge of a motor vehicle.1

Defences to this charge otherwise ordinarily turn on some element of the offence not being made out. These include:

  • Three hours has passed since the accused was driving, occupying or in charge of a motor vehicle / since the accident occurred2;
  • The person taking the blood or receiving the urine sample is not a registered medical practitioner or approved health professional.3

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

The maximum penalty for this charge depends on how many times a person has been found guilty of this offence. The maximum penalties are4:

  • In the case of a first offence; 12 penalty units (a $1,934.28 fine);
  • In the case of a second offence; 120 penalty units (a $19,342.80 fine) or 12 months imprisonment;
  • In the case of the third or subsequent offence; 180 penalty units (a $29,014.20 fine) or 18 months imprisonment.

There is an additional penalty of 12 penalty units (a $1,934.28 fine) for hindering or obstructing a registered medical practitioner or approved health professional from attempting to take a blood sample or being furnished with a urine sample.5

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 Department of Treasury and Finance reviews and updates the value of a penalty unit on 1 July each year.6 As such, the maximum fine for this offence may change.

The offence of refusing to give blood or a urine sample is regularly heard in the Magistrates’ Court.

What is the legal definition of Refuse to Give Blood or Urine Sample (Drink Driving)?
  1. A person is guilty of an offence if he or she –
    (ea) refuses to comply with a requirement made under section 55B(1) or 55BA(2)

Section 55B – Blood and urine samples – persons assessed to be impaired by drugs

  1. If a person undergoes an assessment of drug impairment when required under section 55A to do so and the assessment, in the opinion of the police officer carrying it out, indicates that the person may be impaired by a drug or drugs, any police officer may require the person to do either or both of the following—
    1. allow a registered medical practitioner or an approved health professional nominated by that police officer to take from the person a sample of that person’s blood for analysis;
    2. furnish to a registered medical practitioner or an approved health professional nominated by that police officer a sample of that person’s urine for analysis—
       

    and for that purpose may further require the person to accompany a police officer to a place where the sample is to be taken or furnished and to remain there until the sample has been taken or furnished or until 3 hours after the driving, being an occupant of or being in charge of the motor vehicle, whichever is sooner.

  • (1A) A police officer must not require a person to allow a sample of his or her blood to be taken for analysis under subsection (1)(a) if that person has already had a sample of blood taken from him or her under section 55 after the driving, being an occupant of or being in charge of the motor vehicle.
     
  • (1B) A police officer must not require a person to allow a sample of the person’s blood to be taken for analysis or to furnish a sample of the person’s urine for analysis under subsection (1) if the person has already had a sample of blood taken from the person under section 55BA.

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  1. A person must not hinder or obstruct a registered medical practitioner or an approved health professional attempting to take a sample of the blood, or be furnished with a sample of the urine, of any other person in accordance with this section.
    Penalty: 12 penalty units.
     
  2. No action lies against a registered medical practitioner or an approved health professional in respect of anything properly and necessarily done by the practitioner or approved health professional in the course of taking any sample of blood, or being furnished with any sample of urine, which the practitioner or approved health professional believed on reasonable grounds was required to be taken from, or be furnished by, any person under this section.
     
  3. If the person on whom an assessment of drug impairment was carried out is subsequently charged with an offence under paragraph (ba) of section 49(1), a copy of a written report on that assessment prepared by the police officer who carried it out and containing the prescribed particulars must be served with the summons or, if a summons is not issued, within 7 days after the filing of the charge-sheet charging the offence.

Section 55BA – Blood samples – accidents resulting in death or serious injury

  1. This section applies if a police officer reasonably believes that an accident involving one or more motor vehicles has resulted in death or serious injury.
  2. Subject to subsections (4) and (5), the police officer may require any person who the police officer reasonably believes was, or may have been, driving or in charge of a motor vehicle involved in the accident at the time of the accident to allow a registered medical practitioner or an approved health professional nominated by the police officer to take from the person a sample of that person’s blood for analysis.
  3. For the purpose of subsection (2), the police officer may require the person to accompany a police officer to a place where the sample is to be taken and to remain there until the sample required to be taken has been taken or until 3 hours after the accident, whichever is sooner.
  4. A person is not obliged to allow a sample of the person’s blood to be taken for analysis if more than 3 hours have passed since the accident.
     

    “Had less than three hours elapsed when you refused to provide the sample?”
  5. A police officer must not require a person to allow a sample of the person’s blood to be taken for analysis under this section if the person is taken to a place for examination or treatment in consequence of the accident.
  6. A person must not hinder or obstruct a registered medical practitioner or an approved health professional attempting to take a sample of the blood of any other person in accordance with this section.
    Penalty: 12 penalty units.
  7. No action lies against a registered medical practitioner or an approved health professional in respect of anything properly and necessarily done by the practitioner or approved health professional in the course of taking any sample of blood which the practitioner or approved health professional believed on reasonable grounds was required to be taken from any person under this section.
  8. Without limiting sections 57 and 57A, if a sample of a person’s blood is taken in accordance with this section, the results of the analysis of the sample may be given to the Corporation for the purposes of accident research.
  9. Nothing in this section prevents a police officer from requiring a person to undergo an assessment of drug impairment in accordance with section 55A.
Legislation

The relevant legislative provision for this offence is section 49(1)(ea) of Road Safety Act 1986 (Vic).

Elements of the offence

To prove this charge the Police must show that the accused refused to give a blood or urine sample in accordance with s 55B(1) or s 55BA(2).

Elements under s 55B(1)

  1. A person, being the occupant of or driving or being in charge of a motor vehicle, undergoes an assessment of drug impairment and, in the opinion of the police officer carrying out the assessment, the person appears to be impaired by drugs;
  2. The person accompanies a police officer to a place where a blood sample is to be taken or a urine sample furnished;
  3. Less than three hours has passed since the person was occupying, driving or in control of a motor vehicle; and
  4. The person refuses to give a blood sample or furnish a urine sample to a registered medical practitioner or approved health professional.

Elements under s 55BA(2)

  1. A police officer believes that a person was driving or in control of a motor vehicle that was involved in an accident that resulted in death or serious injury;
  2. The person accompanies a police officer to a place where a blood sample is to be taken;
  3. Less than three hours has passed since the accident;
  4. The person refuses to give a blood sample to a registered medical practitioner or approved health professional.
Sentencing in the Magistrates’ Courts

Magistrates' CourtIn the Magistrates Court the following sentences were imposed for this offence between 1 July 2013 and 30 June 2016:

  • Imprisonment (12.7% of cases);
  • Partially suspended sentence (1.8% of cases);
  • Wholly suspended sentence (7.3% of cases);
  • Community Correction Order (25.5% of cases);
  • Fine (49.1% of cases);
  • Adjourned Undertaking / Discharge / Dismissal (3.6% of cases).

Imprisonment sentences for this charge were less than three months in 42.9% of cases; 3 < 6 months in 28.6% of cases; and 12 < 18 months in 28.6% of cases.

Other important resources

 



[1] Road Safety Act 1984 (Vic) s 55B(1A)
[2] Road Safety Act 1984 (Vic) ss 55B(1); 55BA(3).
[3] Road Safety Act 1984 (Vic) ss S 55B(1)(a)-(b); 55BA(2).
[4] Road Safety Act 1984 (Vic) s S 49(3).
[5] Road Safety Act 1984 (Vic) ss S 55B(3); S 55BA(7).
[6] Department of Justice and Regulation Victoria, accessed 7/11/2018 <http://www.justice.vic.gov.au/home/justice+system/fines+and+penalties/penalties+and+values/>.
[7] SAC Stats Magistrates’ Court – Refuses to comply with requirement under section 55(b)(1), accessed 7/11/2018 <https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/86_127_49_1_ea.html>.