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Refusing a blood or urine test

Information about how a person may be found guilty of refusing to have a blood or urine test as required under drug driving law.

It is an offence to refuse to have a blood or urine test if required to do so after having a drug impairment assessment. Refusal may be communicated through words or actions.

It is also an offence to refuse to allow a doctor to take a blood sample after involvement in a motor vehicle accident where a person attends a place for examination or treatment.

What prosecution must prove

Before a person can be convicted of this offence the prosecution must prove that the:

  • driver was lawfully obliged to have a drug impairment assessment
  • assessment indicated that the driver was impaired (in opinion of assessing police officer)
  • officer made a request to driver to accompany them to a place where sample was to be taken and explained purpose of journey
  • it is not necessary for the officer to explain what would happen if they refused
  • request was made within 3 hours of driving or being in charge of a motor vehicle
  • driver refused to:
    • accompany officer to place where sample could be taken (or given), or
    • remain at sample place
    • allow sample to be taken.

If driver initially refuses and then changes their mind prosecution can still decide to lay charge of refusing to allow sample.

Note: It is not necessary for a registered medical practitioner or approved health professional to be present when the refusal is made.

See Halepovic v Sangston [2003] VSC 464 (24 October 2003). and Motor & Traffic Law [5610.415C]

Reasonable suspicion of impairment

A police officer may require a person whose behaviour or appearance indicates that that person may be impaired for some reason other than from drinking alcohol alone. So a driver is not taken to be impaired unless their behaviour or appearance gives rise to a reasonable suspicion that they are not able to drive properly. There must be some factual reason for this belief.

See Drug impairment assessments and Motor & Traffic Law [5610.415D]

Refuses to give blood but willing to give urine sample

If the driver refuses to allow a blood sample to be taken, but is willing to allow a urine sample they may be able to avoid being found guilty of refusal.

If the defendant can show that they have a hypodermic needle phobia (sufficiently severe to be supported by medical science) they may provide this defence. Dislike of blood or light headedness will not be enough.

See R v Harding (1974) 59 CR App R 153; [1974] RTR 325; Sykes v White [1983] RTR 419.

Did the driver understand the request?

The defence of mental impairment may establish that the driver was not able to understand the request that was made to provide a sample of blood or urine. This is because a refusal must be knowing and willful.

See Police v Ghuede (2007) 99 SASR 280 as mentioned in Motor & Traffic Law [5610.415E]

More information

Legislation

Road Safety Act 1986 (Vic)

  • s. 3(1)—defines registered medical practitioner and approved health professional
  • s. 49(1)(ea)—refusal to have urine or blood sample
  • s. 49(3)—list penalties
  • s. 55B—blood and urine samples

See Road Safety Act 1986 (Vic).

Reference

Motor & Traffic Law Victoria

Motor and Traffic Law Victoria has commentary about refusing to provide blood or urine sample.

  • Refuse to provide blood and/or urine sample [5610.415A]
  • Reasonable suspicion of impairment [5610.415D]
  • Refusal to provide blood and/or urine sample [5610.415E]

Note: To access content type the brackets and number reference into the search box, for example "[5610.415A]"

See Refuse to provide blood or urine sample [5610.415A] in Part 5—Offences involving alcohol or other drugs [5600].

Updated