Note: This piece has already appeared on FindLaw before, but is a useful re-hash due to the upcoming Christmas/New Year’s holiday period.
As the year winds down and summer has allegedly begun, we can all take stock of the year that has passed, while looking forward to the year ahead. This is the time for presents, hanging out with the family and partying. Now, most people will drink and act responsibly, while unfortunately for others, drinking, then driving will probably be a choice that the few – and silly – will make. Needless to say, any person who chooses to drink and drive during the holiday period will be running the gauntlet, because you can be assured that the police will be out in force, looking to nab anyone who is driving while over the limit. So with that being said, if a person has been pulled over: What are the obligations? Can a person refuse a breathalyser test?
All Australian States have a blood alcohol limit of 0.05 for drivers with a full licence, while for learner, probationary, and special licence holders, such as truck drivers and people who are in control of public transport, a zero alcohol limit is in force.
Can someone refuse a breath test?
In most circumstances, an individual cannot refuse to undergo a breathalyser test, with police officers having the power to request any person driving a vehicle to take a test. Additionally, anyone who gives an unsatisfactory sample, such as trying to blow a little lighter so there may be no reading, will be judged to have refused a breath test and is guilty of an offence.
Refusing to take a breath test is treated as a serious offence. In Queensland for example, s 80(5A) of the Transport Operations (Road Use Management) Act, states that anyone who refuses to take a breathalyser test faces a $4000 fine or six months in prison. To put that in perspective, a driver in Queensland who is charged with a drink driving offence that is considered in the lower range of drink driving, faces a maximum fine of $1400, and three months in prison. So you’re damned if you do, but you’re definitely damned if you don’t take that breath test.
The police can also request a breath test from a passenger of a vehicle who they reasonably believe was a driver. So, for anyone attempting to do the old switcheroo with someone who has been drinking and driving, think again.
When can’t police request a breath test?
There are some circumstances when police aren’t allowed to request a breath test and there are slight differences between the States. For Queensland and New South Wales, a police officer can no longer request a breath test from someone if they have not been driving a vehicle in the previous two hours, while in Victoria it’s three. A request to take a breath test can also be refused on medical grounds, but if a doctor consents to the test being conducted if it won’t affect the condition of an individual, the test can still proceed.
Finally, if a person is home, a police officer cannot request an individual to undergo a breath test.
If a breath test is negative: do I still have to undergo further tests?
If a police officer conducts a breath test and it is negative, a request for a further test can still be made: if an officer believes that a driver is under the influence of drugs; or has a reasonable belief that the driver was a learner, probationary driver; or that an individual is holding a special licence that requires a zero blood alcohol reading.
Can I challenge a breath test reading?
Challenging a blood alcohol reading is limited in the event if an individual blows over the 0.05 limit. In s 49 of the Road Safety Act in Victoria for example, the grounds for challenging a breathalyser result are:
• if the driver believes that the instrument was faulty
• if the result from a breath test was incorrect
• that the breath test was administered incorrectly, such as after the prescribed period when a test can be conducted, or in violation of medical grounds.
Most challenges tend to be on incorrect procedural matters, but challenges are extremely limited, and in most cases require expert testimony.
If you’ve had more than a few drinks during the holiday season, don’t drive, even if you believe that you’re under the limit. If you are in trouble for a drink driving offence, always seek legal help immediately.
