What is the Offence of Refusing a Breath or Drug Test?
In Victoria, refusing to undergo a breath test, saliva test, or blood test when lawfully requested by police is a serious offence under the Road Safety Act 1986 (Vic). The law imposes strict penalties for refusal, often harsher than those for drink or drug driving itself.
Police have the power to conduct roadside tests for:
- Alcohol (breath test or blood test)
- Drugs (saliva, blood, or impairment test)
Refusal to comply can result in an automatic licence disqualification and substantial fines.
What the Prosecution Must Prove
To secure a conviction for refusing a breath or drug test, the Prosecution must establish:
- You were driving or in control of a motor vehicle — This includes being in the driver’s seat with the keys in the ignition.
- Police lawfully requested a test — The request must have been made in accordance with the law (e.g., within three hours of driving).
- You refused to comply — This includes outright refusal or failing to provide a sufficient sample without a valid reason.
Penalties for Refusing a Breath or Drug Test in Victoria
Refusing a breath or drug test is treated as a serious offence, often carrying heavier penalties than a positive test result.
- Licence Disqualification — Mandatory for all offences.
- Fines — Up to 120 penalty units (over $25,000).
- Interlock Device Requirement — Required for alcohol-related refusals.
- Imprisonment — Possible for repeat offenders.
General Penalties for Refusing a Test
|
Offence |
First Offence |
Subsequent Offences |
|---|---|---|
|
Refusing a breath test |
Minimum 2-year disqualification |
Minimum 4-year disqualification |
|
Refusing a drug test |
Minimum 2-year disqualification |
Minimum 4-year disqualification |
Possible Defences to Refusing a Breath or Drug Test
Some legal defences may be available, including:
✓ Medical Condition — If a medical issue (e.g., lung disease) prevented you from providing a sufficient sample.
✓ Unlawful Police Request — If police did not follow legal requirements (e.g., testing was conducted outside the allowed timeframe).
✓ Lack of Understanding — If you did not understand the request due to a language barrier or cognitive impairment.
Charged with Refusing a Breath or Drug Test? Contact Us for Expert Legal Advice
If you have been charged, it is crucial to seek legal advice as soon as possible. A conviction can result in a criminal record, loss of licence, and financial penalties. Our experienced traffic lawyers at Elbob & Stephenson Legal can assess your case, explore possible defences, and work to minimise the impact on your life.
☎ Contact us today on 1800 117 533 to schedule a consultation.
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