drug driving criminal lawyers

Refuse to comply with request for oral sample 49(1)(eb)

Drug Driving -it is an offence against s 49(1)(eb) of the Road Safety Act 1986 (RSA) to refuse to comply with a request to provide a sample of oral fluid when lawfully requested to do so by a police officer.

49(1)     A person is guilty of an offence if he or she—

(eb)     refuses to provide a sample of oral fluid in accordance with section 55D or 55E when required under that section to do so or refuses to comply with any other requirement made under that section…

Section 49(1)(eb) must be read in conjunction with ss 55D and 55E in order to understand the circumstances in which a police officer (or in limited cases, an officer of the Department of Transport, Planning and Local Infrastructure) may request a sample of oral fluid.

Refuse preliminary oral fluid test

Pursuant to s 55D(1), a police officer may at any time require:

  • (a) any person they find driving or in charge of a motor vehicle, or
  • (b) a person stopped at a preliminary testing station (e.g. booze bus), or
  • (c) any person they reasonably believe was in charge of a motor vehicle within 3 hours of it being in an accident, or
  • (d) any person they reasonably believe was an occupant of a motor vehicle within 3 hours of it being in an accident

to undergo a preliminary oral fluid test by a prescribed device, and so may also require that person to accompany them to a police station or appropriate place for the purpose of undergoing that test.

Refuse sample for oral fluid testing (evidentiary test)

Pursuant to s 55E(2), if a person has:

  • (a) undergone a preliminary fluid test and an officer is of the opinion that the person’s oral fluid contains a prescribed illicit drug, or
  • (b) the person fails to carry out the preliminary oral fluid test satisfactorily    

any officer may require the person to provide a sample of oral fluid for testing by a prescribed device, and for that purpose may require the person to accompany them to a police station, other appropriate place or vehicle.

A person suspected of driving on drugs or who has refused a preliminary oral fluid test will need to remain at a police station, vehicle or other place until the oral fluid test has been carried out, or it has been three hours since driving, whichever is sooner.

If you have also been asked to provide a sample of breath under s 55, or undergo an assessment of drug impairment under s 55A, you may be required to provide a sample of oral fluid (s 55E(3)).

If you have refused to provide a sample of oral fluid, or the prescribed device was not able to properly test your fluid, you may be required to allow a registered medical practitioner or approved health professional to take a sample of blood for the purpose of drug testing (s 55E(13)). This may include accompanying the requesting officer to a place where a sample can be taken (such as a booze bus, police station, or hospital).

If you have refused or failed to provide a sample of oral fluid (or blood) in accordance with either ss 55D or 55E, you may be charged with refusing to provide a sample as an offence against s 49(1)(eb), and will need to face court. Refusal also includes failing or refusing to remain at a place until either the sample has been collected, or it has been 3 hours since you last drove.  

Penalty: Refuse to comply with request for oral sample

The penalties for refusing to comply with a request under s 49(1)(eb) are found in s 49(3AAA):

  • (a) For a first offence, a maximum fine of 12 penalty units.
  • (b) For a second offence, a maximum fine of 60 penalty units.
  • (c) For a third or subsequent offence, a maximum fine of 120 penalty units.

Licence suspension:

Section 50(1D) provides that if a person is convicted or found guilty of an offence against s 49(1)(eb) for refusing to comply with a request to supply a sample of oral fluid, the court must cancel that person’s driver licence or learner permit, and disqualify them from driving for a minimum period of:

  • In the case of a first offence, 2 years.
  • In the case of a subsequent offence, 4 years.

This is the mandatory minimum disqualification period a Magistrate must give you if you are convicted or found guilty of the offence of refusing to comply with a request for an oral sample. While a Magistrate cannot give you less time off the road, they can definitely give you more.

You should also note that any prior drink driving or drug driving conviction will count as a prior conviction for the purposes of penalties and disqualification periods (see s 48(2)), regardless of whether you complied with a request to provide an oral sample on a previous occasion. However, s 50AA tells us that prior convictions which are more than 10 years old may be omitted from consideration when determining fines and disqualification periods. While this may be the case, a Magistrate may still give you more than the mandatory minimum. You should seek expert legal advice about prior convictions and driving offences if you have been charged with refusing to comply with a request under s 49(1)(eb).

Elements:

Refuse preliminary oral fluid test:

In order to show that you have refused to comply with a request for a preliminary oral fluid test, the police must show that:

  • you were driving or in charge of a motor vehicle within the last three hours,
  • the police officer asked you to provide a preliminary sample of oral fluid, and
  • you refused to do so.

Refusal may be by words or conduct, so simply failing to undergo the prescribed oral test will amount to refusal, even if you have not explicitly said you refuse.

If you initially refuse, and then later consent, you may still be charged with refusing to comply. This will proceed at the prosecution’s discretion. You should discuss this with an experienced criminal solicitor. In some circumstances, you may be able to have the charge of refusing to comply withdrawn if you did eventually consent to supply an oral sample. If the test proved positive, charges may proceed on ss 49(1)(ba) or (bb) which carry significantly lower disqualification periods, meaning less time off the road for you.

Refuse evidentiary oral fluid test:

In order for the police to make out a charge under s 49(1)(eb) for failing to comply with a request under s 55E(2) or (3), they must show that:

  • you were driving or in charge of a motor vehicle within the last three hours,
  • they required you to undergo a preliminary oral fluid test,
  • the preliminary oral fluid test indicated you may be impaired by drugs, or you refused or failed to satisfactorily undergo a preliminary oral fluid test,
  • they then required you to supply a sample of oral fluid and may also have required you to accompany them to a place where a sample could be obtained, and
  • you refused to comply with this request, or refused to remain at that place until either the test was complete or three hours had elapsed since you were driving.

Refusal may be by words or conduct and will vary from case to case.

You may also be charged with refusing to comply with a request to provide or accompany to a place to provide a sample of blood, as set out above (s 55E(13)). This includes hindering or obstructing a registered medical practitioner or approved health professional from taking a sample (see s 55E(16)).  

There are certain procedural requirements the police must adhere to when requesting and carrying out oral fluid tests and blood samples. These include, but are not limited to, telling you to remain at a place for up to three hours in order to undergo testing (Uren v Neale), using a prescribed device operated by an approved person, and issuing you with a sample and certificate.   

Defences:

It may be a defence if you have been requested to undergo a preliminary oral fluid test or provide a sample of oral fluid, and it has been more than three hours since you last drove or were in charge of a vehicle.

The defence of “reason of substantial character” may also be available in certain circumstances. This is only available for a charge of refusal to provide an evidentiary sample of oral fluid or blood, and not a preliminary oral fluid test. It is also not a defence to a charge of refusing to accompany a police officer, or remain at a place for the purpose of providing a sample of oral fluid. What constitutes a defence of substantial character is to be determined by the individual facts and circumstances of each case, and you should discuss this with your solicitor if you believe you may have a defence.

Contact:

If you have been charged with refusing to comply with a request to undergo a preliminary oral fluid sample, refusing to comply with a request to provide a sample of oral fluid, refusing to comply with a request to accompany, or refusing to comply with a request to provide a sample of blood, you should contact a specialist traffic lawyer as soon as possible. You may be facing harsh fines and a long time off the road.

A traffic law specialist will be able to help you understand your charges, your options, court procedures, and prepare your case so that you receive the best possible outcome at court. Do not hesitate or leave it to the last moment. Contact a traffic lawyer today.