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 to Provide Further Sample (Drink Driving)?
Refusing to Provide Further Sample is a drink driving offence under section 49(1)(e) of the Road Safety Act 1986 (Vic). It concerns a driver who, after being lawfully required to undergo breath analysis using an approved device, declines to provide the additional breath sample requested by police.
Key points
- Legal element: A refusal to provide a further breath sample when lawfully required.
- Type of conduct: Failing or declining to give a further breath sample at a roadside test or police station.
- Court level: Regularly heard in the Magistrates’ Court.
The maximum penalty for Refuse to Provide Further Sample (Drink 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, and 180 penalty units ($37,638.00 as at 2026–27) or 18 months imprisonment (subsequent offence).
Common defences may include A factual dispute about whether a refusal occurred, whether police made the request, or whether a medical condition prevented providing a sample.
Have you been accused of Refuse to Provide Further Sample?
Police Interview
The Police will conduct a field interview if they accuse you of Refusing to Provide a Further Sample. They will note all of your answers to their questions which can help form part of their brief of evidence against you. There is usually nothing to be gained from making a comment in a Police interview. The Police are trained in interview techniques that encourage you to reveal information that assist their case.
Please call us to discuss your matter and get advice before participating in a Police interview so we can advise you of the best way to handle the interview process.
Pleading Not Guilty
If you are pleading not guilty in the Magistrates’ Court to Refusing to Provide a Further Sample the matter will proceed to a contested hearing. A contest is basically a trial in the Magistrates’ Court where the Magistrate hears the evidence and decides if you are guilty or not.
Our lawyers are skilled advocates who go to Court every single day and contest all driving matters. Our lawyers know how to probe a weak prosecution case and are expert cross examiners.
Pleading Guilty
If you are pleading guilty it is important that you engage an expert lawyer to make a plea on your behalf. A well-structured and thoughtful plea can ensure that you have the best chance at receiving the minimum penalty for your offending. Our lawyers understand how important people’s driver’s licences are and will express this to the Court.
Sentencing
Sentencing in the Magistrates’ Court of Victoria
Source: Sentencing Advisory Council of Victoria (SACStat), Road Safety Act 1986 (Vic) s 49(1)(e) — 805 charges across 786 cases, Magistrates’ Court, 1 July 2020 – 30 June 2023.
| Sentencing outcome | % |
|---|---|
| Fine | 71.9% |
| Adjourned Undertaking | 11.8% |
| Community Correction Order | 10.4% |
| Imprisonment | 5.1% |
| Discharge/Dismissal | 0.6% |
| Other | 0.1% |
These figures indicate that imprisonment is possible but not the usual outcome. Most cases are dealt with through financial penalties or community-based orders, depending on the circumstances of the offence and the individual driver’s history.
Which court will the case be heard in?
The offence of refusing to provide a further sample is the sort of charge regularly heard in the Magistrates’ Court.
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
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 analysing instrument’.
The Road Safety Act defines a ‘breath analysing instrument’ as –
- 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
- 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?
Defences
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.
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?
Maximum penalty for section 49(1)(e) of the Road Safety Act 1986
The maximum penalties stated above are applicable for third or subsequent offences of Refuse to Provide Further Sample (Drink Driving) (s49(1)(e) of the Road Safety Act 1986). If the offending is committed for the first time, a maximum penalty of 12 penalty units ($2,509.20 as at 2026–27) may be imposed. If committed for the second time, an accused may be sentenced to a fine of 120 penalty units ($25,092.00 as at 2026–27) 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.
Other important resources
- SAC Statistics – Road Safety Act 1986 (Vic) : s 49(1)(e) – refuses to comply with section 55(1), (2), (2aa), (2a) or (9a)
- Drink Driving Lawyers: Refuse to provide further sample (drink driving)
- Can a Person Refuse a Breathalyser Test? And Other Questions Related to Drink Driving
