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Refuse to Provide Further Sample (Drink Driving)

– section 49(1)(e) of the Road Safety Act 1986
Police With Handcuff and Phone
A person who refuses to provide a further breath test sample to Police may be charged under section 49(1)(e) of the Road Safety Act 1986 (Vic).
Examples of Refuse to Provide Further Sample (Drink Driving)
  • Failing to provide a sample of breath when taken to a booze bus
  • Failing to provide a sample of breath when taken to a Police station
Questions in cases like this
  • Do you suffer from a medical condition preventing you from providing a sample of breath?
  • Were you asked by Police to provide a further sample?
  • Did you provide a further sample of breath as requested?
What are some of the possible defences to Refuse to Provide Further Sample (Drink Driving)?

A person charged with failing to provide a further sample of breath when requested to by Police may rely on a factual dispute to defend this charge.

You should call us and discuss your case with one of our experienced lawyers if you have been charged this offence. 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 penalties stated above are applicable for third or subsequent offences. If the offending is committed for the first time, a maximum penalty of 12 penalty units may be imposed. If committed for the second time, an accused may be sentenced to a fine of 120 penalty units or 12 months imprisonment.

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 offence of refusing to provide a further sample is the sort of charge regularly heard in the Magistrates’ Court.
 
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What is the legal definition of Refuse to Provide Further Sample (Drink Driving)?

Section 55 of the Road Safety Act 1986 (Vic) permits a member of Police to conduct a breath test on a person in control of a motor vehicle by using a ‘breath analyzing instrument’.

The Road Safety Act defines a ‘breath analyzing instrument’ as –

  1. the apparatus known as the Alcotest 7110 to which a plate is attached on which there is written, inscribed or impressed the numbers “3530791” whether with or without other expressions or abbreviations of expressions, commas, full stops, hyphens or other punctuation marks and whether or not all or any of the numbers are boxed in; or
  • (ab) the apparatus known as the Alcotest 9510 AUS to which a plate is attached on which there is written, inscribed or impressed the numbers “8320869” whether with or without other expressions or abbreviations of expressions, commas, full stops, hyphens or other punctuation marks and whether or not all or any of the numbers are boxed in; or
  1. apparatus of a type approved for the purposes of section 55 by the Minister by notice published in the Government Gazette or for the purposes of any corresponding previous enactment by the Governor in Council by notice published in the Government Gazette for ascertainment by analysis of a person’s breath what concentration of alcohol is present in his or her breath;
Legislation

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

Elements of the offence

In essence, to prove this charge, the Police must show that the accused refused to provide a further breath test sample.

“Can the Police prove that you refused to provide a further sample of breath?”
Sentencing in the Magistrates’ Courts

There were 1,788 cases (1,890 charges) of Refuses to Comply with Section 55(1), (2), (2aa), (2a) or (9a) – Road Safety Act 1986 section 49(1)(e) that were heard in Victorian Magistrates’ Courts from 1 July 2013 to 30 June 2016. Most of these cases led to fines (62.0%) but other sentencing forms were also imposed:

  • Community Correction Order – 17.5%
  • Imprisonment – 9.5%
  • Wholly Suspended Sentence – 6.5%
  • Adjourned Undertaking/Discharge/Dismissal – 3.2%
  • Partially Suspended Sentence – 1.0%
  • Youth Justice Centre Order – 0.2%
  • Other – 0.1%

ImprisonmentThe longest term of imprisonment imposed was between 24 and 36 months but this category was applied in only 2.4% of the cases that resulted in imprisonment. Most of the cases that led to prison terms fell under the “3 < 6 months" category (35.3%).
 
Of the fines imposed, the highest was between $3,000 and $4,000 but this was least applied at only 0.6% of those who were fined (aggregate). The majority were fined somewhere between $1,000 and $2,000 (29.2% for aggregate), and between $500 and $1,000 (21.1% for non-aggregate).1

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

Other important resources
Case studies related to Refuse to Provide Further Sample (Drink Driving)

 



[1] SAC Statistics – Road Safety Act 1986 (Vic) : s 49(1)(e) – refuses to comply with section 55(1), (2), (2aa), (2a) or (9a) < https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/86_127_49_1_e.html >
[2] Suspended Sentence | The Sentencing Advisory Council < https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence >