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Refusal offences

This page is about refusing to co-operate when asked to undertake a blood or breath test.

There are several distinct offences related to failing to co-operate when police or other authorised persons require a driver to comply with a request to stop or to undergo testing for the presence of alcohol when they are driving a vehicle.

All offences are penalised very heavily. There is no advantage to be gained from refusing to be tested as the penalties are as high as for the most serious drink-driving offences.

Drivers may be charged with one of the refusal offences under the Road Safety Act 1986 if they refuse to:

  • undergo preliminary breath test when required to do so
  • comply with request to stop and remain stopped
  • allow a blood or urine sample to be taken (after police member undertaking drug impairment assessment believes person impaired by drug)
  • furnish a breath sample for analysis (following preliminary breath test where alcohol was detected)
  • allow a doctor to take a blood sample after being involved in a motor vehicle accident, or
  • accompany police to have blood test following accident where a person dies or is seriously injured.

Each of these offences is explained in more detail below.

Penalties

Disqualification

If a driver is found guilty of a refusal offence they will have their licence cancelled and will be disqualified from driving for at least 2 years for a first offence and 4 years for a subsequent offence.

Immediate licence suspension

Drivers who refuse to allow testing or who refuse to co-operate when requested to stop and remain stopped may also have their licences suspended immediately.

Alcohol interlock device

All drivers who are convicted of a refusal offence must have an alcohol device fitted to their vehicle if they wish to re-apply for a licence. The magistrate has no discretion.

Fines and imprisonment

Refusal offences carry the following fines and imprisonment penalties:

  • first offence: 12 penalty units
  • second offence: 120 penalty units or 12 months imprisonment
  • third or more offence: 180 penalty units or 18 months imprisonment
  • supervising driver: 5 penalty units.

Refuse or fail to stop for random test

A person may be charged with this offence if they fail to stop when signalled to do so at a random breath test station or ‘booze bus’.

Before a person can be found guilty the prosecution must establish that:

  • the defendant was driving vehicle
  • the breath test station was properly set up and operated
  • the police officer was on duty and wearing a uniform
  • the driver refused to comply with request or signal made
  • the driver refused to remain stopped until it was indicated that they could proceed
  • a request or signal was made by police, and
  • the driver was not detained for longer than necessary.

See s. 49(1)(d)—Road Safety Act 1986 (Vic)(opens in a new window).

Refusing to undergo preliminary breath test

A person who refused to have a breath test may be charged with an offence if:

  • they were driving or in charge of a motor vehicle within the last 3 hours
  • they were required to stop at preliminary breath testing station
  • police believe they were in charge or driving a motor vehicle that was involved in an accident within the last 3 hours.

The material facts relevant to the prosecution are:

  • that the member of police must have had power to request a breath test (that is, they must have had reasonable belief that the person was the driver or in charge of the vehicle)
  • where the driver of commercial vehicle is asked to give breath test—this request may be made by an authorised person, not a member of police—this person must have the authority required
  • that the police made the request to the defendant
  • that the request was made within 3 hours of driving
  • that the breath testing device was one of the types prescribed in the Regulations
  • that the driver must have been told what would happen if they refused a preliminary test
  • whether the driver was told how to perform the preliminary test, and
  • that the police officer must have checked that the device was in proper working order before handing it to the driver (Hewitt v Harms (1989) 10 MVR 63).

Driver doesn't have to say 'no'

Refusal can be made by either words or conduct. A person can still be charged with refusing a test even where they initially refuse and later change their mind (Reddy v Ross [1973] VR 462).

An offence is not to be treated as 'trifling' (Stafford v Nguyen (1991) 13 MVR 483)

See s. 49(1)(c)—Road Safety Act 1986 (Vic)(opens in a new window).

Driver has no right to see results of a preliminary breath test

In DPP v Blango [2012] VSC 384 (link below), where a driver refused to accompany a police officer because the officer did not disclose the result of their breath test, it was held that the driver has no right to see the result of a breath test.

Refusal after agreeing to a preliminary test

A driver may be charged for refusing to allow a test after a preliminary breath test showed that alcohol is present. Usually a person can’t be charged with this offence unless they have already been given a preliminary breath test.

Exceptions

No preliminary breath test is needed if the police form a reasonable belief that more than the prescribed amount of alcohol is present in the driver’s blood

If the driver refuses to allow preliminary breath test, police may require them to give a sample by using a breath analysis instrument.

Driver may be required to go with police and remain

If a driver's preliminary breath test indicates that alcohol is present, they may be required to provide a sample of breath for analysis. In order to provide a sample, driver may be required to accompany a police officer or other authorised officer to a place where breath sample can be analysed. This might be a booze bus or police station, for example.

See s. 49(1)(e)—Road Safety Act 1986 (Vic)(opens in a new window).

The driver must also remain until given a certificate from an authorised person who analysed the sample or until 3 hours have passed since they were driving. The certificate must include particular details, including the concentration of alcohol.

Before making a conviction the court must be satisfied that:

  • the driver was obliged to have a preliminary breath test, that is:
    • the person was found driving or in charge of motor vehicle, and
    • the person was required to stop and remain at testing station, or
    • the police formed the reasonable belief that the vehicle was involved in an accident within previous 3 hours (need not have been the person driving if the driver has not been established), and
  • the preliminary testing device was of a kind prescribed in r. 201
  • a preliminary test indicated the presence of alcohol
  • the driver failed or refused to comply with a preliminary breath test being carried out (exhaling continuously until told to stop)
  • an officer requested the driver to accompany them to place where breath could be analysed
  • an officer asked the driver to provide sample of breath for analysis
  • if the driver refused to allow preliminary breath test, the officer then asked the driver to accompany them and to allow their breath to be analysed
  • the driver was told what would happen if they refused to have the test, and
  • the driver must have refused to allow test or to accompany an officer.

The court must be satisfied that the driver was given sufficient information to know that they were required to stop and the reason that request was made (Sanzano v County Court of Victoria BC200400868; [2004]VSC 48).

When a preliminary test is not necessary

A police officer may require a driver to have their breath analysed without the need for a preliminary breath test if the driver refuses to allow preliminary breath test, or if the officer forms a reasonable suspicion that the driver:

  • was driving under the influence (DUI)
  • was driving with more than prescribed amount of alcohol in their blood or breath.

The material facts relevant to the prosecution are:

  • the police must have formed reasonable belief that driver was over BAC limit (note: only police can bypass the preliminary test and make request for analysis)
  • the police must have requested that the driver accompany them for analysis and must have requested a breath sample
  • the consequences of refusing test must have been explained
  • the driver must have refused to remain at the testing place or refused to have the test.

Request for more than one sample

Police may require a driver to provide more than one sample of breath for analysis if it appears that the equipment may be incapable of measuring alcohol concentration.

So a driver may also be charged if a request was made for more than one sample to be provided for analysis where a belief was formed that equipment was unable to correctly record the concentration of alcohol in the driver’s breath. For example, a person may initially co-operate but then there is a problem with the equipment and the driver is asked to provide a second sample, but they refuse this second attempt.

See s. 55(2A)—Road Safety Act 1986 (Vic)(opens in a new window).

More information

Legislation

Road Safety Act 1986 (Vic)

  • s. 49(1)(c)—offence to refuse to undergo preliminary breath test
  • s. 49(1)(d)—refuses or fails to comply with request to stop and remain stopped
  • s. 49(1)(e)—refuses to undergo breath analysis
  • s. 49(3)—penalties for refusal offences and exclusion for supervising driver
  • s. 50(1B)—provisions about cancellation for refusal offences
  • s. 53—preliminary breath tests—gives power to police to conduct preliminary breath tests
  • s. 54—power for police to set up preliminary breath testing stations—explains where and how test stations should be set up
  • s. 55—breath analysis
  • s. 55(2)—if police believe driver is under influence or over the limit they do not need to take a preliminary test first
  • s. 55(2A)—driver may be required to have more than one sample analysed
  • s. 55(4)—requirement to provide certificate to driver
  • s. 55(9)—defence of reason of substantial character
  • s. 55BA—blood samples in accidents where a person was seriously injured or died
  • s. 56—refuse or obstruct blood sample from being taken following an accident that involves a motor vehicle
  • s. 85(b)—immediate suspension provision for refusal offence

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

Road Safety (General) Regulations 2019 (Vic)

  • r. 10—lists approved breath test devices
  • r. 11—procedure for breath analysis
  • r. 12—information that must be contained on breath analysis certificate.

See Road Safety (General) Regulations 2019 (Vic)(opens in a new window).

References

Lexus Advance's Motor & traffic law—Victoria has commentary about:

  • failing to stop [5610.300]
  • refusing a preliminary breath test [5610.265]
  • situations where a defendant has refused to comply with a requirement for a breath or blood test [5610.335]

Note: To access content type the brackets and number reference into the search box, for example '[5610.135]'

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

Go to homepage Motor & traffic law—Victoria(opens in a new window).

Related pages

Case law

Victoria Police Manual

The Victoria Police Manual has information about police policies and procedures when they suspect a driver has been drink or drug driving.

See Victoria Police Manual—Driving under the influence of alcohol or drugs(opens in a new window).

Updated