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Refusal defences

Information about the defences that have been used when someone is charged with a refusal drink driving offence.

Driver must be told that blood will be taken by health professional

The driver was told that he was required to undergo a blood test (after preliminary breath test showed alcohol was present and then two attempts to give breath for analysis failed because of insufficient sample). The driver said that he was allergic to needles and refused to have the test. Police warned him of the penalty for refusing the test but did not mention that the sample would be taken by a health professional under s. 55(9A) of the Road Safety Act 1986 (Vic).

See DPP v Novakovic [2012] VSC 397 (7 September 2012)(opens in a new window)., as cited in Motor and Traffic Law Victoria at [5610.37.1]

Police request to accompany need not say how long they must remain

The Piscopo matter was successfully appealed and the Court of Appeal found that the police must tell the driver that:

  • they are required to accompany them to give a sample of breath and
  • that they are to remain until they are given a certificate or until 3 hours has passed since they were driving.

However, under section 55(1) of the Road Safety Act 1986, the elements of 'accompany' and to 'remain for 3 hours or until they are given a certificate' are separate. There is no need for the police to tell the driver how long they are required to remain when they are asking the driver to accompany them.

See DPP v Piscopo [2011] VSCA 275 (9 September 2011)(opens in a new window). as cited in Motor and Traffic Law Victoria at [5610.345.5].

Choice to refuse is no defence

The prosecution does not have to prove that a driver had to understand that they had to accompany police. In fact the driver has a choice, go with the police or be charged with a refusal offence.

However, using a defence of mental impairment may establish that the defendant was not able to understand the request for a breath test. A refusal to undergo a breath test involves a knowing and wilful refusal, according to a South Australian case, Police v Gheude 92007) 99 SASA 280.

See DPP v Serbest [2012] VSC 35 (3 February 2012)(opens in a new window). as cited in Motor and Traffic Law Victoria at [5610.391].

Technical refuse defence - Kypri

A refuse to accompany charge under s. 49(1)(e) must refer to the specific subsection of s. 55 that has not been complied with. It is not enough to just state that a person has failed to comply with a request under s. 55.

However if the charge is defective it may be amended even after the limitation period has expired.

See DPP v Kypri summary by James Anderson.

Defence of ‘reason of substantial character’

A statutory defence is available for refusing a lawful demand for breath test. Section 55(9) of Road Safety Act 1986 says that someone can’t be convicted or found guilty of refusing to give a breath test if there was some reason of substantial character for the refusal, other than desire to avoid providing information that may be used against them.

See:

  • Burns v Storey [1970] VR 388 at 391 (Full Supreme Court discussion of phrase)
  • Beardsley v Hower (1993) 19 MVR 15.

However, this defence is not available for refusing to accompany a member of the police force to a station for the purpose of a breath test or for refusing to have a blood test.

See:

Refuse and then agree

The subsequent willingness to co-operate after an initial refusal is irrelevant to the question of liability or whether or not there was any substantial reason or not for refusing.

See Reddy v Ross [1973] R 462 at 470; Beardsley v Hower (1993) 19 MVR 15 at 21

Unreasonable for police to require person to remain within proximity

A person was charged with refusal because she went outside to smoke a cigarette after being told that there was alcohol in her mouth upon a preliminary breath result, and that she would need to wait another 15 minutes before being tested again.

The trial judge said that ‘reasonableness’ was required to be read into s. 53 (the section that gives police the power to require someone to undertake preliminary blood test).

The motorist's appeal was upheld as she did stay in proximity of the testing station despite being told explicitly not to leave, and also she remained as she was required to for 15 minutes.

It was also suggested in that case that the request to accompany must also be reasonable (Per Eames J).

See Hrysikos v Mansfield [2002] VSCA 175 (1 November 2002)(opens in a new window).

Defective pleading of charge by police

A motorist complied with the first police requirement to provide a sample of breath for analysis, but failed to allow a second sample. The motorist was charged with refusal under s. 49(1)(e) for failing to provide breath sample under s. 55(1) rather than s. 55(1AA).

Prosecution attempted to amend the charge but did so after the 12-month statute of limitations under s. 26(4) of the Magistrates' Court Act had expired. The Crown appealed but the appeal was not allowed.

Note: Section 26 of the Magistrates' Court Act 1986 has been repealed and a similar section (s. 7) inserted into the Criminal Procedure Act 2009.

See Goodey v Clarke [2002] [2002] VSC 246 (12 June 2002)(opens in a new window) and Time limits for summary crime.

Note: s. 49(1)(f) was amended in October 2002, removing distinctions between refusal of first request or further request. This makes it unlikely that prosecution will make a similar mistake in future, however the driver should check the description written in the charge very carefully to make sure it matches the evidence prosecution has. If the 12-month limitation period has expired and prosecution makes an application to amend charge under s. 50(1) of the Magistrates’ Court Act 1986, this application should not be permitted and the charge should be dismissed.

More information

Legislation

Road Safety Act 1986 (Vic)

  • s. 49(1)—offences involving alcohol or other drugs defined
  • s. 53—preliminary breath tests
  • s. 55(1)—breath analysis
  • s. 55(9)—a person must not be convicted or found guilty of if he or she satisfies the court that there was some reason of a substantial character for the refusal

See Road Safety Act 1986 (Vic)(opens in a new window).

Magistrates' Court Act 1989 (Vic)

  • s. 50(1)—power to amend charge

See Magistrates' Court Act 1989 (Vic)(opens in a new window).

Criminal Procedure Act 2009 (Vic)

  • s. 6(3)—a charge-sheet must comply with schedule 1
  • s. 7—time limits for filing a charge-sheet for a summary offence
  • cl. 1, Schedule 1—charges on a charge-sheet or indictment
  • s. 9—errors etc. in a charge-sheet

See Criminal Procedure Act 2009 (Vic)(opens in a new window).

Reference

Motor & Traffic Law—Victoria

This Lexus Advance site has commentary on:

  • refuse preliminary breath tests [5610.265]
  • refuse or fail to stop at preliminary testing station [5610.300]
  • refuse breath or blood test [5610.335]
  • refusal to comply with requirement for a blood sample under s. 55(9A) [5610.370]

Note: To access content type the brackets and number reference into the search box, for example "[5610.265]''

See Defences [5610.193] in Part 5—Offences involving alcohol or other drugs [5600](opens in a new window).

Updated