It is an offence against the Road Safety Act 1986 (RSA) to refuse to undergo a preliminary breath test. The offence is found in s 49(1)(c) of the RSA which states that it is an offence to refuse to undergo a preliminary breath test when asked by a police officer in accordance with s 53. Section 53 gives a police officer the power to:
- Require any driver or person in charge of a motor vehicle to undergo a preliminary breath test (PBT).
- Require a driver stopped at a preliminary testing station to undergo a PBT.
- Require any person they believe on reasonable grounds to have been driving within the last 3 hours since they were involved in an accident to undergo a PBT.
- Require any person they believe on reasonable grounds to have been an occupant of a motor vehicle within the last 3 hours since they were involved in an accident to undergo a PBT.
The preliminary breath test requires the person to exhale continuously into the device to the satisfaction of the police officer (or in rare cases, an officer of the Department of Transport, Planning and Local Infrastructure who also have the power to request a preliminary breath test).
Under s 49(1A), a person may be charged for refusing a PBT even if the officer requesting the PBT does not have the device at the time of requesting it (see DPP v Alliston).
Drink Driving Penalty: Refuse preliminary breath test
The penalties for refusing to undergo a PBT are found in s 49(3):
(a) For a first offence, a maximum fine of 12 penalty units.
(b) For a second offence, a maximum fine of 120 penalty units or imprisonment for a maximum 12 months.
(c) For a third or subsequent offence, a maximum fine of 180 penalty units or imprisonment for a maximum of 18 months.
Drink Driving Refuse Preliminary Breath Test Licence suspension:
Pursuant to s 50(1B), if a person is convicted or found guilty of an offence against s 49(1)(c) for refusing to undergo a PBT when requested to do so, 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.
So while the penalty for a first offence of refusing to undergo a PBT is relatively small fine of 12 penalty units, the disqualification period is a mandatory 2 years off the road. This is in contrast to undergoing a PBT and being charged with drink driving, which only attracts a minimum disqualification period of 2 years at 0.24 BAC. This reflects the Court’s determination to ensure safe use of the road, as well as the administration of justice, and to hold those accountable who disobey the law.
Because the difference between the mandatory minimum for a first and second or subsequent offence is 2 years off the road, and over 100 penalty units in fines, it is important to determine whether this is your first offence. For the purposes of disqualification, s 50AA deems driving offences for which you have been convicted over 10 years ago not to be a prior offence. However, it is still at a Magistrates’ discretion to disqualify you from driving for longer than the mandatory 2 year minimum, and you may still receive longer than 2 years off the road.
If you have been convicted or found guilty of drink or drug driving previously, this will count as a prior offence, even if you consented to a PBT on the previous occasion. You should consult an experienced criminal solicitor when dealing with any refusal to undergo a preliminary breath test charge, particularly if you have been found guilty of a prior drink or drug driving offence.
Drink Driving Defence Elements:
If you have been requested by a police officer to undergo a PBT, your refusal may be by words or conduct. That is, you might either verbally tell the officer you refuse to undergo the PBT, or simply refuse to blow into the device. This would amount to a refusal. If you do not satisfactorily blow into the device, this could also amount to a refusal.
The leading case for a refusal to undergo a preliminary breath test is Peebles v Hotchin, where a man refused to undergo a breath test after a police officer was informed that the man was observed to have parked a van at a shopping center, and was heavily intoxicated. The issue here was that the police officer had not observed the accused driving the vehicle, or being in charge of the motor vehicle. He was relying on the statement of security guards who they say saw him drive the van. Ultimately, the accused was held not to be in charge of the vehicle because the police officer could not reasonably have suspected that he was driving the vehicle. As such, there was no case to answer for a refusal to undergo a PBT.
Drink Driving Defences:
It may be a defence to a charge of refusal to undergo a PBT if the police officer requesting the test did not adequately explain that the test is a preliminary breath test (DPP v Skafidiotis).
It may also be a defence to a charge of refusal to undergo a PBT if the police officer did not adequately explain how the preliminary breath test is to be undertaken (Police v Spitzer).
The most persuasive defence against a charge of refusal to undergo a PBT is that more than 3 hours have elapsed since you last drove or were in charge of a motor vehicle (Stafford v Nguyen). See also Peebles v Hotchin above, where a police officer must have a reasonable belief that a person was in charge of a motor to request a preliminary breath test.
Drink Driving Charges Get advice:
If you have been charged with refusal to undergo a preliminary breath test, you should contact an experienced traffic lawyer immediately. You may be facing a minimum driving disqualification period of 2 years, as well as a heft fine. If you have also previously committed a drink or drug driving offence, the penalties you face could be even greater. You should contact an experienced criminal law professional as soon as possible.