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Refuse to Provide Oral Fluid (Drug Driving)

This charge is generally laid in situations where a person refuses to provide oral fluid.
Police Writing Ticket to Against Man in a Car
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:

  1. The accused refused to provide oral fluid…
  2. In accordance with section 55D, or
  3. 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

  1. A police officer may at any time require…
    1. any person he or she finds driving a motor vehicle or in charge of a motor vehicle; or
    2. the driver of a motor vehicle that has been required to stop at a preliminary testing station under section 54(3);
    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
    4. 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


[1] Section 55E(4) of the Road Safety Act 1986
[2] Section 55D of the Road Safety Act 1986.
[3] Section 55E(1) of the Road Safety Act 1986.
[4] Section 55E(2) of the Road Safety Act 1986.

 
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.
 

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. A second offending may result in a fine of 60 penalty units. 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.

Sentencing in the Magistrates’ Courts
From 1 July 2013 to 30 June 2016, there were 706 cases (791 charges) of Refuses to Provide a Sample of Oral Fluid that were heard in the Magistrates’ Courts of Victoria. Majority of these cases led to financial penalties (62.5%) but various other sentences were also imposed:

  • Community Correction Order – 17.6%
  • Imprisonment – 13.0%
  • Adjourned Undertaking/Discharge/Dismissal – 3.7%
  • Wholly Suspended Sentence – 2.6%
  • Partially Suspended Sentence – 0.7%
Of the prison terms imposed, the most frequent was for a period that was less than 3 months (31.5% of the cases that led to imprisonment). The longest term was between 24 and 36 months (2.2%).

Of the fines imposed, the most frequently imposed was between $1,000 and $2,000 which was applied in 28.0% of the charges that led to aggregate fines, and between $500 and $1,000 which was applied in 24.1% of the charges that led to non-aggregate fines. The highest amount imposed was between $4,000 and $5,000 (0.9% for aggregate fines).5

Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.6


[5] SAC Statistics – Road Safety Act 1986 (Vic) : s 49(1)(eb) – refuses to provide a sample of oral fluid < https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/86_127_49_1_eb.html >
[6] Suspended Sentence | The Sentencing Advisory Council < https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence >