Refusing
a Breath Test
Refusing to
Accompany a police member,
refusing a preliminary breath
test, refusing to remain for a
breath test or blood test,
refusing a blood test.
Refusing
a Preliminary Breath Tests
A
police member is entitled to require
you to undergo a preliminary breath
test if:
•
you are found driving or in charge of
a motor vehicle. You are in driving of
a motor vehicle if you are in control
of the vehicle's motion. You are in
charge of a motor vehicle if you have
an immediate intention to drive the
motor vehicle.
•
the police member reasonably believes
you were driving, in charge of, or an
occupant of a motor vehicle involved
in a motor vehicle collision within
the previous 3 hours.
Generally, if the police require you to
undergo a preliminary breath test you
should comply. If the police do not have
lawful grounds for requiring a preliminary
breath test you are likely to win your
court case if you end up being charged
with exceeding your BAC limit. The
police
will not tell you the result of the
preliminary breath test. The result is
irrelevant. The penalty for
refusing a preliminary breath test is at
least 2 years licence cancellation.
Refusing
to Accompany.
The police are entitled to require you
to accompany them to a police station or
other place for the purpose of an
evidentiary breath test if a preliminary
breath test reveals there is alcohol in
your breath, or if they have reason to
believe you have been driving whilst
over your BAC limit. The police can also
require you to accompany them to a
hospital or other palce for the purpose
of a blood test if attempts to get an
evidentiary braeth test fail to produce
a result.
There is almost no situation where it
is OK to refuse to accompany the police
for a breath test or blood test.
Nevertheless, there are many defences
available to charges of refusing to
accompany.
Refusing
an Evidentiary Breath Test
When
you are in the booze bus or police
station you might be required to
provide a sample of breath for
analysis. Surprisingly, you can be
required to provide a sample of breath
even though no breath testing machine
exists. If you refuse to provide a
sample of breath you commit an offence
that is punishable by at least 2 years
licence loss and possibly prison if
you have prior drink driving offences.
An attempt to blow - even if
unsuccessfull - is not a refusal to
blow. Multiple failed attempts to
provide a sample of breath will result
in the police requiring you to provide a
sample of blood instead. It is possible
to refuse to provide a sample of breath
if you have a really good reason for not
being able to blow - in which case you
should offer to provide a blood sample
instead.
Refusing
to Remain for a breath or blood test
The police can require you to remain in
a police station or other place for the
purpose of a breath or blood test. So
they can require you to wait for up to 3
hours from the time of driving if they
need to get people or things ready for
the test. The police do not have power
to arrest or detain you, so it is up to
you to decide to remain. If you decide
to leave, you commit an offence that
results in at least 2 years licence
cancellation and possibly imprisonment.
In all refusal cases the chance of winning
is much better than your chance of winning
a typical breath test case. However, the
penalties are usually much worse so it is
not advisable to rely on refusal as an
option to reduce your risk of licence
loss. Once you are charged with a refusal
offence you can expect your drivers
licence to be suspended immediately.
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