Refusing a Preliminary Breath Test

Some people may believe that failure to comply with a preliminary breath test (“PBT”) when requested to do so by police will not be as bad as blowing a reading of 0.05 or above. This article briefly examines when police may request a person to undertake a PBT and what the consequences are when the request is lawful but you fail to comply. 

When am I required to provide a sample?

A person is required to comply with a request from a police officer when the request is made at any time outlined in section 53 of the Road Safety Act (VIC) 1986 (“the Act”).

A police officer can request a person to undertake a PBT if that person:

  1. was found driving a motor vehicle or in charge of a motor vehicle,
  2. if they were stopped and remain stopped at a preliminary breath testing station,
  3. any person the police officer believes on reasonable grounds has within the last three preceding hours driven or been in charge of a motor vehicle involved in an accident, or
  4. any person who he or she believes on reasonable grounds was, within the last three preceding hours an occupant of a motor vehicle that was involved in an accident if it is not been established to the satisfaction of the police officer which of the occupants was driving or in charge of the motor vehicle when it was involved in the accident.

If any of the circumstances apply above, the police officer can require a person undergo a PBT.

A person is not obliged to undergo a PBT if more than 3 hours have passed since the person last drove, was an occupant of or was not in charge of a motor vehicle.

However, if the police believe you have driven (and generally this belief will be based on actual information they have), you can still be prosecuted for failing to provide the sample but the burden of proof will be on the police to establish that your refusal was not lawful as you had driven.

What does ‘in charge’ of a motor vehicle mean? Can I be caught even if I am not driving?

A person is taken to be in charge of a motor vehicle if:

  1. they are attempting to start or drive the motor vehicle;
  2. there are reasonable grounds for the belief that the person intends to start or drive the motor vehicle;
  3. an accompanying licensed driver such as a supervisor of a driver with a learner’s permit or a commercial instructor while teaching; and
  4. a person holding an ADS permit and is supervising an automated vehicle in automated mode while being the assigned person to do so.

What is the penalty for not providing a sample?

Section 49(1)(c) of the Act makes it an offence to refuse to undergo a PBT. Sections 49(3) and 50(1B) of the Act set out the penalties for refusal which will include:

(a) in the case of a first offence, a fine of not more than 12 penalty units (1 penalty unit of $159.57 x12 is $1,902.84) and a minimum disqualification from driving for 2 years;

(b) in the case of a second offence, a fine of not more than 120 penalty units (1 penalty unit of $159.57 x120 is $19,028.40) or imprisonment for a term of not more than 12 months, as well as a minimum disqualification from driving for 4 years; and

(c) in the case of any other subsequent offence, a fine of not more than 180 penalty units (1 penalty unit of $159.57 x180 is $28,542.60) or to imprisonment for a term of not more than 18 months, as well as a minimum disqualification from for 4 years.

In addition, a Magistrate will likely record a conviction for the offence.

The disqualification times above are minimums, so if you plead guilty to an offence of failing to undergo a PBT when requested and that request is within the times where it could be requested, a Magistrate cannot lower that suspension time.

If you have any questions about the above information or your would like assistance, please contact us on 5303 0281 or at reception@ballaratlawyers.net.au.

The information on this website is of a general nature only. It is not, nor is it intended to be, legal advice. You should consult a lawyer for individual advice about your particular circumstances.

Liability limited by a scheme approved under Professional Standards Legislation. 

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