Author: Ophelia Hollway
Practice area: drink driving offences
Ophelia is a Senior Associate and LIV Accredited Criminal Law Specialist at Doogue + George, appearing regularly as a solicitor advocate across Victorian courts and having practised exclusively in criminal law since admission. Her depth of experience in this area means clients receive accurate, considered advice.
View full profile →Ophelia authored this content and last revised it for accuracy on 6 August 2026.
What is the offence of Refuse to Provide Oral Fluid (Drug Driving)?
This offence arises where a person does not comply with a lawful requirement to undergo a preliminary oral fluid test by a prescribed device under Victorian road safety law. It is charged under section 49(1)(eb) of the Road Safety Act 1986 (Vic) and relates specifically to roadside drug testing procedures.
Key points
- What must be proved: A refusal to provide oral fluid in accordance with section 55D or section 55E.
- When police can require a test: Including where a person is found driving, in charge of a vehicle, or believed on reasonable grounds to have done so within the previous 3 hours.
- Which court hears the charge: Magistrates’ Court.
The maximum penalty for Refuse to Provide Oral Fluid (Drug Driving) is For first-time offenders, a fine of 12 penalty units ($2,509.20 as at 2026–27). A second offending may result in a fine of 60 penalty units ($12,546.00 as at 2026–27) while a subsequent one leads to a fine of not more than 120 penalty units ($25,092.00 as at 2026–27). A licence disqualification will be also imposed for at least 2 years for first offences.
Common defences may include Factual dispute; being asked to undergo a preliminary oral fluid test more than 3 hours after last driving; whether the accused was an occupant of, or was in charge of, a motor vehicle.
Have you been accused of Refuse to Provide Oral Fluid (Drink Driving)?
Police Interview
The police interview is an important stage in the investigation process. It is worth knowing that anything you tell the police can be used to support their prosecution of you. In a case of Refusing to Provide an Oral Fluid Sample, they will write down all questions and answers. This creates a risk of them misinterpreting what was said.
You should always seek advice from an experienced criminal lawyer before you speak to police. A criminal lawyer will explain step-by-step what happens when you go to the police station and provide you with expert advice about how to protect your interests in the police interview.
Pleading Not Guilty
Being charged with a criminal offence is a stressful experience, particularly if you have been falsely accused of Refusing to Provide an Oral Sample. You may feel isolated and vulnerable.
One of our expert criminal lawyers will clearly explain the Court process to you, and represent you through each step as you contest the charge. With expert legal and strategic knowledge in conducting a criminal defence, your lawyer will maximise your chances of being found not guilty.
Pleading Guilty
Sometimes the police case can be overwhelming and it is in your best interests to plead guilty early to avoid a worse outcome. If that is the case and you intend to accept the charge of S Refuse to Provide Oral Fluid, a criminal lawyer’s role is to make persuasive submissions to the Magistrate to get the fairest outcome.
Sentencing
Sentencing in the Magistrates’ Court of Victoria
Source: Sentencing Advisory Council of Victoria (SACStat), Road Safety Act 1986 (Vic) s 49(1)(eb) — 1,729 charges across 1,540 cases, Magistrates’ Court, 1 July 2020 – 30 June 2023.
| Sentencing outcome | % |
|---|---|
| Fine | 69.5% |
| Community Correction Order | 17.4% |
| Adjourned Undertaking | 8.2% |
| Imprisonment | 4.1% |
| Discharge/Dismissal | 0.6% |
| Other | 0.2% |
These figures indicate that imprisonment is possible but not typical. Most matters are resolved with financial penalties or community-based orders, depending on the circumstances of the offence and the driver’s prior record.
Which court will the case be heard in?
The offence of refusing to provide oral fluid is a charge heard in the Magistrates’ Court.
Examples of Refuse to Provide Oral Fluid (Drug Driving)
- You smoked some weed with your mates last night and decide to drive your car to work the following day. On the way to work, a police officer asks you to stop and undergo an oral fluid test. You’re aware that it will probably come up as positive, so you refuse.
What is the legal definition of Refuse to Provide Oral Fluid (Drug Driving)?
A person is guilty of an offence if he or she refuses to provide a sample of oral fluid in accordance with section 55D or 55E when required under that section to do so or refuses to comply with any other requirement made under that section.
Did you refuse to provide oral fluid?
Legislation
The legislation for this offence can be found on section 49(1)(eb) of Road Safety Act 1986.
Elements of the offence
To prove this charge, the prosecution must prove the following beyond reasonable doubt:
- The accused refused to provide oral fluid…
- In accordance with section 55D, or
- In accordance with section 55E.
Did you refuse to provide oral fluid?
The provision of a sample of oral fluid under this section must be carried out in accordance with the prescribed procedure.1
Section 55D requirements
- A police officer may at any time require…
- any person he or she finds driving a motor vehicle or in charge of a motor vehicle; or
- the driver of a motor vehicle that has been required to stop at a preliminary testing station under section 54(3);
- any person who he or she believes on reasonable grounds has within the last 3 preceding hours driven or been in charge of a motor vehicle when it was involved in an accident; or
- any person who he or she believes on reasonable grounds was, within the last 3 preceding hours, an occupant of a motor vehicle when it was involved in an accident, if it has not been established to the satisfaction of the police officer which of the occupants was driving or in charge of the motor vehicle when it was involved in the accident…
…to undergo a preliminary oral fluid test by a prescribed device and, for that purpose, may further require the person, if inside a motor vehicle, to leave the motor vehicle for the purpose of undergoing the test.
For further details, see section 55D.2
Section 55E requirements
Section 55(1) provides the definition of ‘authorised officer’ and ‘enforcement officer’.3
If a person refuses to provide oral fluid, a police officer may ‘require the person to accompany any police…to a place or vehicle where the sample is to be provided and to remain there until…the person has provided the sample…or 3 hours after the driving, being an occupant of or being in charge of the motor vehicle…whichever is sooner.’4
Defences
Defences to this may arise as a factual dispute, or where the accused was asked to undergo a preliminary oral fluid test, that more than 3 hours had passed since the person last drove, or whether the accused was an occupant of or was in charge of a motor vehicle.
Questions in cases like this
- Did you refuse to provide oral fluid?
- Were you asked by an authorised officer or enforcement officer?
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 for section 49(1)(eb) of the Road Safety Act 1986
The maximum penalty stated above for Refuse to Provide Oral Fluid (Drug Driving) (s49(1)(eb) of the Road Safety Act 1986) may be imposed by Courts if the offence is committed for the third time or subsequently. For first-time offenders, the maximum penalty that could be imposed is a fine of 12 penalty units ($2,509.20 as at 2026–27). A second offending may result in a fine of 60 penalty units ($12,546.00 as at 2026–27). A licence 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.
