drink driving

Refuse to comply with request for Urine or Blood 49(1)(ea)

Refuse to comply the offence of refusing to comply with a request to furnish a sample of urine or blood in accordance with the relevant provisions is found in s 49(1)(ea) of the Road Safety Act 1986 (RSA).

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

(ea)     refuses to comply with a requirement made under section 55B(1) or 55BA(2)…

Section 55B(1) provides that if a person undergoes an assessment of drug impairment, and the test indicates a positive result, any police officer may require the person to:

  • (a) allow a registered medical practitioner or approved health professional to take from the person a sample of that person’s blood for analysis, and/or

(b) furnish to a registered medical practitioner or approved health professional to take from the person a sample of that person’s urine for analysis

and for that purpose, may further require the person to accompany a police officer to a place in order to take the blood or furnish the urine sample, and remain there until it has been taken or furnished, or until 3 hours after driving, being in charge of, or being the occupant of a motor vehicle, whichever is sooner.  

Section 55BA(2) applies in similar circumstances as s 55B, except it only applies to samples of blood, and is only required if a police officer reasonably believes the person was driving or in charge of a motor vehicle which was involved in an accident (within 3 hours) and has resulted in death or serious injury.

A refusal to comply with a request under s 49(1)(ea) will still amount to an offence against that section even if the police officer making the request has not nominated a particular registered medical practitioner or approved health professional to take the sample, or whether or not one of those two people is present at the time the request is made.

Penalty: Refuse to comply with request for urine or blood

The penalties for refusing to comply with a request under s 49(1)(ea) to provide a sample of blood or urine, or accompany to provide such a sample, are set out 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 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.

Licence suspension:

Pursuant to s 50(1D), if a person is convicted or found guilty of an offence against s 49(1)(ea) for refusing to comply with a request to accompany to take a sample of blood or furnish a sample of urine, 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.

For the purposes of s 49(1)(ea), a prior offence is not limited to prior conviction of refusing to provide a sample of blood or urine. Any drink or drug driving offence may be a prior offence when determining penalties and disqualification (see s 48(2)).   

However, you should note that s 50AA deems driving offences for which you have been found guilty over 10 years ago not to be a prior offence. However, it is 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. You should speak with an experienced traffic lawyer about the circumstances of your offending and any prior convictions you may have.

If you are charged with refusing to comply with a request to provide a sample of blood or urine under s 49(1)(ea), a police officer may suspend your licence immediately. In this case, you are not permitted to drive until your matter has been determined at court (see s 51(1A)).

Elements:

In order to make out the offence of refusing to comply with a request for urine or blood under s 49(1)(ea), the police must show that you were required to undergo an assessment of drug impairment under s 55A, the assessment indicated you may be impaired by drugs, a police officer requested you provide a sample of blood or urine to a registered medical practitioner or approved health professional, and they requested you accompany them to a place where a sample could be taken, and that you refused to comply with that request.

The offence can also be made out if the police officer making the request reasonably believes you were the driver of a motor vehicle involved in an accident which resulted in the death or serious injury of another person (s 55BA(2)). Reasonable belief might vary depending on the circumstances of the case. It must be more than a suspicion, but need not be certain (see George v Rockett).

A refusal can be by words or conduct, and includes not accompanying police to provide a sample, refusing to furnish a sample of urine, refusing to allow a registered medical practitioner or approved health professional from taking a sample of blood, or refusing to remain at a place for the purpose of providing a sample. A subsequent willingness to provide a sample after an initial refusal is irrelevant to the question of liability, and you may still be charged with refusal to comply with a request for urine or blood (see Reddy v Ross).

The police officer requesting you accompany them to a place to provide a sample must adequately explain the obligation of the requirement to remain at that place until a sample is provided or 3 hours have passed since last driving, whichever is sooner (Uren v Neale).   

What you should do:

If you have been charged with refusing to comply with a request to provide a sample of blood or urine after an assessment of drug impairment, you should contact a traffic law expert immediately. Not only might you face a large fine and long periods off the road, you may also face a term of imprisonment if this is a second or third offence. You may also be required to undertake driver education programs, and apply through the court to have your licence reinstated, all of which come at extra costs.

You should contact a criminal defence lawyer if you have been charged with refusing to comply with a request for urine or blood. Early consultation will give you the best opportunity at court, and your solicitor will help you through the difficult and stressful judicial process at every stage.

 

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