Do you have a question about criminal law offences?

IT IS FREE TO ASK
OR
SELECT Y0UR STATE

Criminal Law News VIC

Drink driving and breathalyser tests

What do you need to know about Breathalyser Tests?

Drinking and driving can lead to very serious consequences in the law. Australia has very tough drink driving laws. Drinking and then driving, may be a decision that you regret for the rest of your life.

Nothing wrong with enjoying a few drinks and having a good time! You might even think that you won’t get caught if you drive, or if you do get caught you just won’t blow into the breathalyser test… Think twice before you drive after a few drinks.

What is the alcohol limit?

The blood alcohol limit in Australia is 0.05 for full licence drivers. If you are a learner, or on probation or holds a special licence(truck drivers or a public transport driver) the alcohol limit is zero.

Can you refuse a Breathalyzer test?

A police officer has the power to ask anyone driving a car to take a Breathalyzer test. You cannot refuse to undergo the test. And don’t think you can cheat the test, by blowing very lightly - you may be judged as refusing to take the breath test and refusing is an offence.

In terms of sec 80(5A) of the Queensland Transport Operations (Road Use Management) Act it is an offence to refuse to take the test and you can face a fine of $4000 or six months in prison. You might think that it may be “worth” paying a $4000 fine. However, you might want to consider that the fine for lower range drink driving is only $1400 or three months in prison. So refusing to take the test might not be such a good choice after all.

Don’t try and switch seats with your sober passenger either – the police can request a test from a passenger if they reasonably believe that he or she was the driver.

Are there situations when the police can’t request a Breathalyzer test?

Yes, a police officer cannot a request that you undergo a Breathalyzer test if you are at home.

You may also refuse to do the test for medical reasons, but if the doctor agrees to the test being done without affecting your medical condition, the test may be done.

The time lapsed since driving may also determine whether the police may request the test – in Victoria the police may not request a test if you haven’t been driving in the previous three hours. This differs between states – In Queensland and New south Wales, the time limit is two hours from when you drove the vehicle.

What if the breath test is negative - are you free to go?

Not necessarily, if the police officer suspects that you are under the influence of drugs, he may request a further test. If you are a learner driver, or on probation, or driving with a special licence the alcohol limit is zero. If the officer has a reasonable belief that you fall into one of these zero tolerance categories, the officer may request another test.

What if you don’t agree with the test results?

Sec 49 of the Road Safety Act in Victoria sets out certain grounds for challenging the results. For example:

  • You believe the instrument was faulty, or
  • The test result was incorrect, or
  • The test was conducted after the allowed time limit, post driving, or
  • it was against medical conditions, or
  • you believe the test was administered incorrectly.

To challenge the blood alcohol reading, you will need expert evidence. It is not easy to challenge the results and most challenges focus on procedural matters. You will need a lawyer to assist you.

So next time you have more than a few drinks, don’t drive! Even if you think you might be within the legal limit – it is not safe and it is not worth the risk of being caught! If you are facing a charge of drink driving, get legal advice immediately.

Ask a Question - It Is Free