Can I refuse a Breath Test?

In Victoria, a police member has the power to require you to undergo a Preliminary Breath Test (PBT) if they believe that you:

  • were or you are driving or in charge of a motor vehicle;
  • had driven a motor vehicle in the last 3 hours;
  • are sitting in the driver’s seat of a motor vehicle with the ignition turned on;
  • instructing or sitting next to a learner licence holder who is or was driving a motor vehicle.

Generally, you must comply with a police officer’s direction to conduct a Breath Test. Failure to do so is an offence and you could face a conviction with a penalty of a substantial fine and a disqualification of your licence for 2 years and possibly prison if you have prior drink driving offences or failures to comply.

There are some defences to refusing to undergo a Breath Test in Victoria. The main defence being the refusal for medical reasons, which requires substantial expert medical evidence. Further, if the police do not have lawful grounds for requiring you to undergo a PBT, then you may have a defence for refusing to comply.

It is always a good idea to comply with the directions of a police officer if they require you to undergo a Breath Test, as the consequences of refusing are quite severe. However, if you believe you have substantial grounds for your refusal you should seek legal advice immediately.

By Oguzhan Sheriff, Partner at RSG Lawyers.

Footnotes available upon request.

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