It is an offence under s 49(1)(ca) of the Road Safety Act 1986 (RSA) to refuse to undergo an assessment of drug impairment.
49(1) A person is guilty of an offence if he or she—
(ca) refuses to undergo an assessment of drug impairment in accordance with section 55A when required under that section to do so, or refuses to comply with any other requirement made under s 55A(1)…
Section 55A provides that a police officer may, at any time, require:
- Any person they find in charge of or driving a motor vehicle, or
- The driver of a vehicle stopped at a preliminary testing station, or
- Any person they believe was in charge of or driving a motor vehicle within 3 hours of when it was involved in an accident, or
- Any person they believe was an occupant in a motor vehicle within 3 hours when it was involved in an accident
to undergo an assessment of drug impairment if the police officer suspects that person’s behaviour or appearance indicates that he or she may be impaired for a reason other than alcohol alone. In that case, the police officer may further require that person to accompany them to a place for assessment.
The requirement extends to anyone who has also been required to undergo a preliminary breath test under s 53, or furnish a sample of breath under s 55, or provide a blood sample under s 55(9A).
A person is not obliged to undergo an assessment if more than 3 hours have elapsed since that person last drove or was in charge of a motor vehicle (s 55A(2)).
Penalty: Refuse drug impairment assessment
The penalties for refusing to undergo an assessment of drug impairment under s 49(1)(ca) are 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 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.
Under s 49(1A), the police officer requesting the assessment of drug impairment need not be the authorised officer, and the request need not be made at the place the assessment is to take place. It is simply refusal of the request which constitutes the offence.
Pursuant to s 50(1D), if a person is convicted or found guilty of an offence against s 49(1)(ca) for refusing to undergo an assessment of drug impairment 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.
This is the minimum period of disqualification. While you cannot get less, a Magistrate can certainly impose more.
It should be noted that these periods of disqualification are double the mandatory minimum time you might spend off the road had you undergone the assessment of drug impairment and tested positive. This reflects the serious nature of the offence, and the Court’s willingness to penalise those who do not cooperate with police drug testing procedures.
You will also notice that the penalties and disqualification periods are significantly different for a first and subsequent offence. If you have previously been charged with a drink driving or drug driving offence, this would impact on your current offence of refusing a drug assessment, even if you cooperated in providing a preliminary breath test or drug assessment on the previous occasion. However, certain exceptions apply (see s 50AA) and you should discuss this with your traffic law solicitor.
The police must show that you were driving a vehicle, in charge of a vehicle, or were a driver or occupant of a vehicle within 3 hours of driving. If the police then require you to undergo an assessment of drug impairment pursuant to s 55A, or make any other request (such as accompanying them to a place where an assessment can be conducted) under s 55A(1), and you refuse to do so, you will be likely be charged with refusal under s 49(1)(ca).
The request to undergo an assessment of drug impairment, other than an assessment at a preliminary testing station, requires the police officer to have some suspicion that your behaviour or appearance indicates that you may be impaired by a drug. The reasons for this suspicion will depend on circumstances, but may include:
- a consideration of observations;
- overt acts;
- evidence of bad driving or lack of proper control;
- locating of drugs in the car;
- slurred speech;
- lack of balance and coordination; or
- a negative preliminary breath test or a negative breath test.
A refusal can either be verbal or by conduct. You would be refusing an assessment of drug impairment if you:
1. tell a police officer you will not undergo an assessment;
2. refuse to accompany them to a place to undergo an assessment; or
3. refuse to undergo the assessment (see for example, DPP v Foster; DPP v Bajram).
If you have been charged with refusing to undergo an assessment of drug impairment, a police officer may suspend your licence immediately, and you will not be permitted to drive until your matter is resolved at court (s 85A).
If you are convicted or found guilty of the offence, you may also face further requirements. These include attending a driver education program, and obtaining an assessment report for when you apply to have your licence reinstated. You may also be required to fit an alcohol interlock device in your motor vehicle for a certain period. Both of these options come at considerable expense to you.
Certain procedural requirements must be followed by police when requesting and conducting an assessment of drug impairment. These include, but are not limited to:
- Being an authorised police officer for the purposes of carrying out an assessment of drug impairment;
- Carrying out the assessment in accordance with legislated procedure;
- Video-recording the assessment (except in special circumstances); and
- Providing a copy of the video to the accused.
If any of these procedural requirements have not been followed, an assessment of drug impairment may be rendered inadmissible. You should discuss this with your solicitor.
It is also a defence to a charge of refusal to undergo an assessment of drug impairment if it has been more than three hours since you have last driven a vehicle. In certain cases, you might be required to prove that you were not in charge of a motor vehicle in the preceding three hours, and you should discuss this with your lawyer.
You should seek immediate legal help from a specialist traffic lawyer if you have been charged with refusing to undergo an assessment of drug impairment. You could be facing a minimum period of four years off the road if this is your second drink or drug driving offence. The more time you allow your solicitor to prepare your matter, the greater the chances of a favourable result at court. Don’t wait until your court date. Contact a criminal defence solicitor immediately.