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Criminal Law News VIC

What happens when you refuse a preliminary breath test?

When are you required to take a PBT?

Most people think the only alcohol-related traffic charges are driving under the influence (DUI) or driving with an excessive blood alcohol concentration (0.05 percent or above).

But section 49(1)(c) of the Road Safety Act 1986 makes it an offence in Victoria to refuse a preliminary breath test when you are required to do so. In other words, the refusal to take the test can be an offence even if you have not had a drop to drink.

Although a driver can consent to take it elsewhere, a preliminary breath test (PBT) is generally a test that is administered “at the scene.” This usually means on or near the road where the driver was stopped while driving, or at the scene of a preliminary testing station.

The PBT device is a hand-held gadget. The officer connects a plastic tube to the device and the driver must blow into the tube continuously until the device gathers enough breath from deep inside the lungs to register a valid reading.

In Victoria, section 53 of the Road Safety Act 1986 authorizes a police officer to require someone to take a PBT if:

  • The officer saw that person driving; or
  • The driver was required to stop at a preliminary testing station; or
  • The officer has reasonable grounds to believe that the person was driving within the last 3 hours and was involved in an accident; or
  • The officer has reasonable grounds to believe that the person was in a car within the last 3 hours that was involved in the accident when the officer does not know who was driving the car.

The officer’s mere belief that someone was driving the car is not a valid reason to require a PBT. In one case, civilians brought a man to the police station against his will and claimed he was guilty of drunk driving. The court decided that the police had no authority to require a PBT because the police had not seen the man drive. In another case, a security officer told the police that an intoxicated driver had parked a van in an area reserved for busses.

The man refused a PBT. The court ruled that the officer had no authority to require the man to take a PBT because the officer did not see him driving.

In addition, if the police see someone driving but more than three hours have passed since the driver stopped driving, the officer loses the authority to require the driver to submit to a PBT.

What are the defences to a charge of refusing to take a PBT?

A charge of refusing to take a PBT can be defended on several grounds:

  • The police did not see the person driving who was required to take a PBT.
  • The police did not see the person driving within three hours of the time the PBT was requested.
  • The police insisted that the PBT be conducted elsewhere than at the scene and the driver did not consent to go elsewhere to take the PBT.
  • The police did not give the driver adequate instructions about how to take the PBT (in other words, did not tell the driver to exhale continuously into the device).
  • The driver had a mental impairment that prevented the driver from understanding the requirement to take the test.
  • The driver did not actually refuse to take the PBT.

What constitutes a refusal to take a PBT?

Sometimes a refusal is obvious, as when a driver says “No, I will not take the test.” Sometimes it is less obvious. If a driver says nothing but makes no effort to take the test, a refusal can be inferred from the driver’s conduct. But sometimes the driver blows into the breath test device as instructed, but does not blow hard enough or long enough to permit the device to register a reading. In those cases, the officer’s opinion that a refusal has occurred can be disputed.

If the driver made a good faith effort to give an adequate breath sample but could not, there has been no refusal. A refusal must be deliberate and wilful. A driver with asthma, for example, might not be able to provide the deep lung air sample that the device requires.

If the driver is in no condition to take the test, through no fault of the driver’s, the driver cannot be held responsible for not taking the test. For example, if the driver sustained an injury that prevented the driver from taking the test, the driver cannot be deemed to have refused the test.

On the other hand, a driver who is deliberately blowing weakly into the device or who deliberately stops blowing before the machine can register a result has refused the test through his or her conduct. As a general rule, courts require the police to give a driver a fair chance to take the test (meaning more than one failed effort) before the police can declare that the driver has refused the test by failing to blow hard enough or long enough.

We know is all sounds very tough and confusing.  If you or a loved one have been charged for breaching the Drink Driving laws, please feel free to contact our criminal lawyers

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