drink driving

Refuse to comply with direction 49(1)(e)

It is an offence against s 49(1)(e) of the Road Safety Act 1986 (RSA) to refuse to comply with a direction given by police pursuant to one of the listed provisions in s 55 of the Act for the purposes of breath analysis.

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

(e)     refuses to comply with a requirement made under section 55(1), (2), (2AA), (2A) or (9A)…

The above provisions in s 55 give the police power to:

  • (1) require a person provide a sample of breath, or require a person accompany police to a police station or vehicle for the purposes of providing a sample of breath
  • (2) require a person who they reasonably believe to be driving under the influence of intoxicating liquor, or exceeding the prescribed content of drug and/or alcohol, to provide a sample of breath, or require a person accompany police to a police station or vehicle for the purposes of providing a sample of breath,
  • (2AA) require a person who is required to undergo an assessment of drug impairment to provide a sample of breath, or require a person remain at the place where the drug assessment is conducted until a sample of breath is furnished,
  • (2A) require a person who was required to furnish a sample of breath under subs (1), (2) and (2AA) to furnish a further sample in certain circumstances such as insufficient breath or power failure, and
  • (9A) require a person to provide a sample of blood, or require a person accompany police to a police station or other place for the purposes of providing a sample of blood, and remain at that place for a reasonable time (up to 3 hours after driving).

If a person refuses to comply with one or more of the directions given above, they may be liable to a charge of refusal to comply with direction under s 49(1)(e).

It does not matter that the police officer making the request or providing the direction does not have a breath analysing instrument or is not a registered medical practitioner at the time of giving the direction. A refusal to provide or accompany would be a refusal of the request or direction, and would be an offence against the section.

Penalty: Refuse to comply with direction

The penalty for refusing to comply with a direction under s 49(1)(e) is found in s 49(3) of the RSA:

  • (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 a maximum 12 months in gaol.
  • (c) For a third or subsequent offence, a maximum fine of 180 penalty units or a maximum 18 months in gaol.

Licence suspension:

Pursuant to s 50(1B), if a person is convicted or found guilty of an offence against s 49(1)(e) for refusing to comply with a direction or request, 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.

The disqualification periods in s 50(1B) are the mandatory minimum periods a Magistrate must disqualify you from driving. They may indeed impose longer disqualification periods, particularly for subsequent offences. Under s 50AA of the RSA, previous convictions which are older than 10 years may be exempt from consideration when determining disqualification periods. However, a Magistrate may still give you more than the mandatory minimum, and you should talk to a traffic law specialist about the possibilities of avoiding more time off the road than is necessary.

Elements:

There are numerous ways you may breach s 49(1)(e) of the RSA. That is, by refusing to comply with any direction given pursuant to ss 55(1), (2), (2AA), (2A) or (9A). These directions are all slightly different, and contain common and specific elements which must be satisfied for the police to show you have refused to comply a direction.

For s 55(1), if you test positive to a preliminary breath test, or refuse or fail to adequately undergo a preliminary breath test, a police officer may direct you to furnish a sample of breath for analysis, or accompany them to a police station or vehicle to provide such a sample.

For s 55(2) a police officer must reasonably believe you are or were in the previous 3 hours, driving under the influence of intoxicating liquor, or exceeding the prescribed content of drug and/or alcohol, and they may require you to provide a sample of breath, or accompany them to a police station or vehicle for the purposes of providing a sample of breath.   

For s 55(2AA) the police must show that you were required to undergo an assessment of drug impairment, and so also requested you remain at the place where the assessment is or was taking place until you also furnished a sample of breath. This provision exists in order to better police road users who are drink and drug driving. If you refuse the drug assessment component, or the breath test component, or both, you may be charged with one or both of those offences.  

For s 55(9A) the police must show that you were required to provide a sample of blood or accompany a police officer to a police station or vehicle to provide a sample of blood, that they requested you do so, and that you refused to do so.

In addition to these elements, the requirement for you to accompany or remain is for 3 hours or until a certificate of analysis is provided to you (see DPP v Piscopo). If you are held for longer than 3 hours after you have been driving, you should discuss this with your criminal law solicitor.    

A police officer who requires you to accompany them pursuant to one of the mentioned provisions of s 55 is obliged to state the purpose of the requirement, namely, to obtain a sample of breath or blood for analysis by a breath analysing instrument or blood analysing instrument, and to disclose the circumstances which by law justify the requirement (see DPP v Foster; DPP v Bajram and Mitchell v DPP).  

The police need not show that you subjectively understood a direction to provide or accompany, merely that you understood given the nature of any response or conduct in all the circumstances (DPP v Serbest; Reddy v Ross).

Distinguishing features:

A s 49(1)(e) offence is distinguished from a s 49(1)(c) offence for refusing a preliminary breath test in that a s 49(1)(c) offence requires police to find the driver in charge of a motor vehicle at the time of making the request. For a s 49(1)(e) offence, a police officer can request a person accompany them for the purposes of providing an evidentiary sample of breath if they believe the person has offended against ss 49(1)(a), (b), or (bc) (see s 55(2)). A refusal of this request would be an offence against s 49(1)(e) and not s 49(1)(c), and is easier to prove than failing to provide a preliminary breath test because there is no continuity requirement which links the person driving to a police observation.

Further, s 49(1)(e) is only read in conjunction with s 55 and not s 53. Section 53 requires a driver to undergo a preliminary breath test (such as at a booze bus or roadside test), while s 55 requires a driver to undergo an evidentiary breath test (usually at a police station or inside a booze bus with the proper facilities). While the penalties and disqualification periods are significantly identical, the requirements to satisfy the offence are different, and you should talk to your criminal law specialist if you have been charged with either refusing to comply with a direction or refusing to undergo a preliminary breath test.

Defences:

As well as the defence of a 3 hour limitation since you were last driving or in charge of a motor vehicle, the defence of “reason of a substantial character” is available for refusing a lawful demand to furnish a breath test (s 55(9)). Essentially, there must be a substantial reason, other than the possibility of incriminating yourself, as to why you cannot furnish a sample of breath. This is not a defence for a request to accompany a police officer to a police station or medical facility for the purpose of furnishing a sample of breath (DPP v Greelish on appeal), or refusing to accompany for the purpose of providing a sample of blood (DPP v Holden). You should discuss the possibility of a reason of substantial character defence with your legal practitioner.

Seek advice:

If you have been charged with refuse to accompany for the purpose of breath test, a refusal to comply with a direction under s 49(1)(e), you should call a professional criminal solicitor as soon as possible. This area of law is complex due to the various requirements listed under s 49(1)(e), and a traffic lawyer will be able to help you navigate your charges and prepare you for court.
The sooner you contact a traffic law specialist, the better your chances of receiving a favourable outcome at court. You should contact a criminal solicitor as soon as possible, even if you have not yet received your police charges. They will be able to explain to you what you might expect, and how best to prepare for a likely future court date.     

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