Transcript
Some people think that refusing a roadside test will actually help them avoid being charged by police. In Victoria, refusing usually makes things worse.
Police can lawfully require you to take a breath test or a drug test if you’re intercepted while driving. Refusing to provide a sample to police is a criminal offence in itself. The law treats it as a very serious matter, and the penalty for refusing to provide a sample is often more serious than the drink or drug driving offence. Penalties can include large fines, lengthy licence disqualification, and even imprisonment in serious cases. There are very few lawful excuses, like a genuine medical emergency. Some people think that saying no will protect them, but the reality is that refusal is seen as obstructing the law
Note that this is general information only. If you’ve refused a test or have been charged by police, please get legal advice about what to do next.
What Happens If You Refuse a Breath or Drug Test in Victoria?
This video breaks down what happens under Victorian law when police stop you for a breath or drug test and explains why refusing a test almost always worsens your legal situation. Many drivers search “can I refuse a roadside breath test in Victoria?” or “what happens if I refuse a drug test?” However, in Victoria, police have clear legal powers to require roadside testing. Importantly, refusal itself is a criminal offence that carries strict penalties and mandatory licence loss.
Police Powers to Conduct Roadside Testing in Victoria
In Victoria, police enforce drink and drug driving laws under the Road Safety Act 1986 (Vic). Under that Act, police may require drivers to undergo roadside breath or drug testing without any need for reasonable suspicion. Instead, the law allows testing simply because a person is driving or has recently driven. For that reason, these powers apply at random testing stations, during roadside intercepts, and after collisions.
Preliminary Breath Tests (PBT) – Section 53
To begin with, police use a preliminary breath test (PBT) under section 53 of the Act. A PBT checks only for the presence of alcohol. It operates as a screening tool using a handheld device. You must take the test if the police request it within three hours of your last driving, being in charge of, or occupying a vehicle. However, if more than three hours have passed, the law does not require you to submit to a PBT.
Refusing a Preliminary Breath Test
If you refuse a lawful request for a PBT, you commit an offence under section 49(1)(c). Police do not need to prove impairment or any level of alcohol. Instead, the offence focuses on non-compliance. You commit the offence if the police make a lawful request and you refuse to blow or fail to do so properly. In practical terms, pretending to blow, blowing weakly, or not following instructions can all amount to refusal.
Breath Analysis Requirements – Section 55
Under section 55, police can require a driver to provide a breath sample for analysis by an approved evidentiary instrument when a preliminary test shows alcohol, the driver has refused or failed a PBT, or police reasonably believe an offence has occurred. Police may also direct you to a police vehicle, station, or other place for this purpose. Refusing to comply with any lawful direction connected to breath analysis can result in an offence under section 49(1)(e).
Roadside Drug Testing – Sections 55D and 55E
Drug testing follows a separate statutory process. Under section 55D, police may require a preliminary oral fluid test at the roadside. This test acts only as a screening tool and does not measure impairment or quantity. If a driver refuses or fails to properly complete the test, police may then require a further oral fluid sample under section 55E. Refusing to comply with a lawful requirement at either stage constitutes an offence under section 49(1)(eb).
Strict Operation of Refusal Offences – Section 49(1A)
Notably, Parliament drafted refusal offences to operate strictly. Section 49(1A) allows a court to convict a person of a refusal-type offence even if certain technical steps did not occur exactly as expected, such as a prescribed device not being presented or an assessment not being available at the location where the demand was made. This ensures the law focuses on compliance with the testing requirement rather than purely procedural details.
Penalties for Refusing Breath or Drug Tests in Victoria
As a result, refusal offences in Victoria attract severe penalties. Courts must impose licence disqualification upon conviction and typically impose substantial fines. Penalties increase significantly for second and subsequent refusal offences, where the court may also impose imprisonment of up to 12 or 18 months, depending on the offence. In addition, courts commonly impose alcohol interlock conditions and “zero BAC” requirements when a person later becomes eligible to re-license. In practice, refusal often leads to harsher consequences than low-range drink or drug driving because it directly undermines roadside enforcement.
Common Mistakes Drivers Make
Despite this, drivers often make avoidable mistakes. Some believe they can delay, argue, or partially comply without consequence. In reality, police may treat hesitation or inadequate effort as refusal. Likewise, stress, fear, or disagreement with the police does not excuse non-compliance. Lawful excuses remain rare and usually require clear medical evidence showing that compliance was genuinely impossible.
Why Early Legal Advice Matters
If police allege refusal, time matters. The critical legal issues include whether police relied on the correct statutory power, whether the request occurred within the required timeframe, and whether your conduct legally amounts to refusal. Early expert advice can shape how the matter proceeds and can play a decisive role in protecting your licence and future.
