Refuse a breath test -Statutory Offence : ROAD SAFETY ACT 1986 - SECT 49(1)(e)

Elements Prosecution Must Prove

1- Accused was requested to undergo preliminary breath test

2- Accused returned a positive alcohol reading, or refused to comply with test

3- Accused was requested to furnish a breath sample for analysis, or accompany police to a police station where the analysis can be performed.

4-Accussed refused to furnish a breath sample, or refused to accompany police.

5-Request was made within 3 hours of accused driving a motor vehicle.


Fail to furnish (refuse a breath test)

Can be a defence where there is a reason of substantial character for the refusal. Pretty high threshold required. Can be a defence if a blood test was consented to and provided.

Refuse to Accompany

A request must be made to accompany. Can be a defence if no request was made.


Sentencing is harsh. Any drink driving offense is considered a previous offence. As such, it is particularly important that such requests are complied with, because it is unlikely that sentence for exceed PCA will be harsher.


Offence History Licence Cancellation Max imprisonment Fine
First offence 24 months NIL 12 penalty units
Second Offence 48 months 12 months 120 penalty units
Subsequent offence 48 months 18 months 180 penalty units

 Related offences:

  1. Culpable Driving Causing Death
  2. Dangerous Driving
  3. Careless Driving
  4. Speeding
  5. Drink Driving / Drive Under the influence (DUI)
  6. Exceed Prescribed Concentration of Alcohol (PCA)


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