Refusing a Breath Test in Victoria – Penalties

Most drivers assume the only risk in a roadside stop is failing a breath test. In practice, refusing (or even failing to properly comply with) a breath test, drug assessment, or oral fluid test is treated just as seriously as the underlying drink or drug driving offence itself, and in some respects is punished more harshly than being over the limit.

Refusal offences carry mandatory licence disqualification, exposure to a risk of imprisonment, and can affect how future offences are penalised. Understanding exactly what conduct amounts to a “refusal”, and what defences (if any) are genuinely available, is essential before assuming the matter is unwinnable.

The Relevant Offences

Refusal and non-compliance offences are created by section 49(1) of the Road Safety Act 1986 (Vic), the same section that houses the drink and drug driving offences.

At a Glance — Comparing the Six Refusal Offences

Refusing a Preliminary Breath Test — s.49(1)(c)

A police officer may, under section 53, require a person driving or in charge of a motor vehicle to undergo a preliminary breath test (PBT) using a “prescribed device”: the handheld unit used roadside or at a booze bus. This power also extends to a person involved in, or an occupant of a vehicle involved in, an accident within the preceding three hours, and to a driver stopped at a preliminary testing station.

Section 49(1)(c) makes it an offence to refuse to undergo a PBT when lawfully required to do so. A person is not obliged to undergo a PBT once more than three hours have passed since they last drove, occupied, or were in charge of the vehicle.

Refusing to Stop at a Testing Station — s.49(1)(d)

Under section 54, police may set up a preliminary testing station (booze bus) on or near a highway. An officer on duty and in uniform at the station may request or signal a driver to stop and remain stopped until told they may proceed. Refusing or failing to comply with this request or signal is a distinct offence under section 49(1)(d).

Refusing a Breath Analysis or to Accompany Police — s.49(1)(e)

This is the most commonly charged refusal offence, and it covers several different scenarios under section 55:

• Refusing to furnish a sample of breath for analysis by a breath analysing instrument after a positive or failed PBT (s.55(1)), or where police reasonably believe a person has committed a drink driving offence (s.55(2)), or where a person is already subject to a drug assessment requirement (s.55(2AA));
• Refusing to accompany a police officer to the place or vehicle where the breath sample is to be furnished, and to remain there — either until a certificate of analysis is given, or until three hours have elapsed since the driving, whichever occurs first; and
• Refusing to allow a registered medical practitioner or approved health professional to take a blood sample under section 55(9A), which police may require where a person is medically unable to furnish a breath sample or where the breath analysing instrument is unable to produce a result.

Section 49(1)(e) does not require that police actually find the person driving or in charge of the vehicle at the time of the requirement; the requirement can still be validly made on the basis of a reasonable belief.

Refusing a Drug Impairment Assessment — s.49(1)(ca)

Section 55A allows a police officer to require a person to undergo an assessment of drug impairment where, in the officer’s opinion, the person’s behaviour or appearance indicates possible impairment for a reason other than alcohol alone. As with a breath test, the officer may also require the person to accompany them to the assessment location and remain there until the assessment is completed or three hours have passed. Refusing to undergo the assessment, or refusing to comply with any other requirement made under section 55A(1), is an offence under section 49(1)(ca).

Refusing a Hospital Blood or Urine Sample — s.49(1)(ea)

In more limited circumstances, typically involving hospitalised drivers following a collision, sections 55B and 55BA empower police to require a sample of blood or urine directly. Refusing to comply with a requirement made under either provision is an offence under section 49(1)(ea).

Refusing an Oral Fluid Sample — s.49(1)(eb)

Sections 55D and 55E establish a parallel process for roadside oral fluid (drug) testing: a preliminary swab test, followed (if positive, or if the preliminary test fails) by a requirement to provide a further sample for laboratory analysis, with an equivalent power to require the person to accompany police and remain at the relevant place. Refusing to provide a sample of oral fluid, or refusing to comply with any other requirement made under sections 55D or 55E, is an offence under section 49(1)(eb).

As with breath testing, if a person is medically unable to provide oral fluid, or the testing device cannot produce a result, police may instead require a blood sample under section 55E(13).

What Counts as a “Refusal”

The Act does not require an explicit verbal refusal. Under section 55(1), a person who is found, in the opinion of the officer, to have “refused or failed” to carry out the preliminary breath test in the manner specified by section 53(3) — i.e. exhaling continuously into the device to the officer’s satisfaction — triggers the requirement for an evidentiary breath test in the same way an outright refusal would. The equivalent applies to oral fluid testing under section 55D(6). In other words, non-compliance with the correct testing procedure can be treated the same as a refusal, even without a driver ever saying “no”.

Due to the significant consequences of a finding of guilt for a refusal offence, it’s no surprise that this area is heavily litigated. Below, there are a number of cases that address commonly raised arguments with respect to refusal offences.

The “Requirement” Doesn’t Need to Sound Like an Order — DPP v Serbest

How a police officer actually phrases the request to accompany them matters far less than most drivers assume, as the Supreme Court made clear in DPP v Serbest [2012] VSC 35.

Mr Serbest returned a positive PBT roadside and was asked, conversationally rather than forcefully, to accompany the officer to the station for an evidentiary breath test. He refused. The Magistrate at first instance dismissed the resulting charge, holding that police needed to prove Mr Serbest had subjectively understood he was required — not merely asked — to go, and finding that he had genuinely believed he had a choice.

On appeal, the Judge held this was the wrong test. Only two things need to be proven: that a requirement was made, and that the person refused to comply with it. There is no need to show the accused subjectively understood the legal consequences, or believed they were legally obliged to comply. The test is objective, and a “requirement” under section 55(1) does not need to be phrased as a command; a polite request is enough.

The practical effect is that it is genuinely difficult to defend a refusal charge on the basis that “I didn’t realise I had to go” or “the officer only asked me nicely.” Courts look at what was objectively communicated, not at what the driver subjectively took from it.

The Same Test Applies to a Bare PBT Refusal — DPP v Vaa

The same objective approach applies even earlier in the process at the preliminary breath test stage itself, as was confirmed in DPP v Vaa [2004] VSC 444. Mr Vaa, a bus driver, was asked by police to undergo a PBT. He replied, “No, I’m not doing it. I’m on my break,” and walked back onto his bus. The Magistrate dismissed the resulting section 49(1)(c) charge on the basis that the prosecution had not proven Mr Vaa was aware of the consequences of refusing.

On appeal, the Judge held this was an error of law. Awareness of the consequences of refusal is neither an element of the offence nor a defence to it; it is enough that a valid requirement was made and the person refused to comply with it. Whether the driver understood what would happen to them if they refused simply doesn’t come into it.

“Accompany” and “Remain” Are Two Different Requirements — DPP v Piscopo

Section 55(1) does two things: it empowers police to require a driver to accompany them to a place to furnish a breath sample, and to remain there until the sample is given or three hours have passed since the driving, whichever is sooner. Whether these are one combined requirement or two separate ones sounds like a technicality, but it decided what police actually had to tell Mr Piscopo before his refusal charge could stick, in DPP v Piscopo [2011] VSCA 275.

The lower courts held that “accompany” and “remain” were integral parts of a single composite requirement — so, since Mr Piscopo was only ever told to accompany the officer and never told he would also have to remain until a sample was given or three hours had elapsed, the full requirement had never been properly communicated, and the charge should fail. The Court of Appeal disagreed: “to accompany” and “to remain” are two discrete requirements, matching the fact that the Act recognises several distinct ways a refusal can occur.

The practical effect cuts both ways:

• A refusal-to-accompany charge does not require proof that the “remain” component (including the three-hour limit) was ever mentioned; it is enough that the driver was told they were required to accompany the officer for the purpose of furnishing a sample, and refused.
• A refusal-to-remain charge is different: because the three-hour limit is central to how Part 5 of the Act operates, and courts are reluctant to read legislation as authorising an open-ended deprivation of liberty without clear words, police must communicate both the purpose of a remain requirement and the three-hour limit whenever it is actually imposed.

For a driver, the strength of a defence can therefore turn on which limb of section 49(1)(e) is actually charged — a bare refusal to accompany is difficult to contest on the basis that “the officer didn’t explain how long I’d have to stay,” since that information is only required once a requirement to remain is actually made.

What “Remain” Actually Requires — Hrysikos v Mansfield

Hrysikos v Mansfield [2002] VSCA 175 shows what actually satisfies — or fails — the “remain” limb from Piscopo, and is a rare example of the same reasoning cutting in the driver’s favour.

Ms Mansfield complied with the requirement to accompany police to a mobile breath-testing station. Her first breath sample proved inconclusive, and she was told to wait 15 minutes for a second test. She asked to go outside for a cigarette and was warned she could lose her licence for two years and receive a substantial fine if she left. She went outside anyway but never moved more than a few paces away, and was still there, plainly intending to return, when an unrelated altercation intervened before any second test could be administered. She was charged with refusing to remain.

The Court of Appeal unanimously held it was not open to find she had refused to remain. “Remain there” does not mean confined within the four walls of the designated vehicle or station. Since there is no power of arrest, the requirement is satisfied so long as the person stays close enough to be readily available for testing, and a refusal requires an inferred unwillingness to comply, not merely stepping outside the designated space. Stepping out for a breath of fresh air is plainly fine; but walking off to a nearby shop could amount to a refusal, because police lose practical control over when the sample can be taken.

Challenging Whether the Requirement Was Properly Established — DPP v Skafidiotis

DPP v Skafidiotis [2013] VSC 258 is a further example of the same reasoning.

Mr Skafidiotis had been involved in an altercation in a car park at 4.30am and admitted he had been drinking and driving. The officer said: “I want you to take a breath test. I don’t think you should be driving” — without producing a device or mentioning “preliminary,” and without Mr Skafidiotis having been intercepted at a testing station. Before a device could be retrieved, he fled. He was charged with refusing to undergo a preliminary breath test under section 49(1)(c).

The Magistrate dismissed the charge, and the Supreme Court agreed. Section 49(1)(c) requires refusal of a specifically preliminary breath test under section 53 — a different offence from refusing an evidentiary breath test under section 55(2), which police may demand directly if they already reasonably believe a drink driving offence has been committed. Because none of the usual contextual clues were present, the words “breath test” were genuinely ambiguous as to which power was being invoked, and that ambiguity favoured the driver: the prosecution bears the onus of proving the specific requirement said to have been refused. The Director’s fallback argument — that fleeing before the officer could finish explaining amounted to an “anticipatory refusal” — was accepted as available in principle, but could not cure a case where the underlying requirement itself was never sufficiently identified.

Penalties

Refusal offences are subject to their own penalty scale under section 49(3), separate from the substantive drink and drug driving offences.

PU = penalty units, set under the Monetary Units Act 2004 (Vic) and indexed annually.

Under section 48(2), a prior conviction for any paragraph of section 49(1) — including a prior drink driving, drug driving, or refusal conviction — counts as a prior offence for the purpose of escalating the penalty on a new charge. A first-time refusal following an earlier drink driving conviction, for example, will be penalised as a subsequent offence.

Licence Disqualification

Every refusal offence carries mandatory licence cancellation and disqualification — the court has no discretion as to whether to cancel the licence, only as to the length of disqualification, which cannot be less than the statutory minimum.

The mandatory licence loss is significant, and materially longer than those that apply to many substantive drink or drug driving offences at lower BAC readings. It’s worth bearing this in mind before assuming a refusal charge is the “lesser” option.

No Infringement Notice — Court Attendance Only

Unlike the substantive alcohol and drug concentration offences, refusal offences cannot be dealt with by infringement notice under any circumstances.

The practical effect is that every refusal charge, even a first offence with no aggravating features, must proceed by way of court summons. There is no equivalent of an on-the-spot fine.

Vehicle Impoundment Does Not Automatically Apply

Police have broad powers under Part 6A of the Act to immediately impound a vehicle for 30 days where it was used in the commission of a “relevant offence” — but the definition of “relevant offence” captures only the alcohol and drug concentration offences under section 49(1)(b), (bb), (bc), (f), (g), (h), (i) and (j). The refusal paragraphs are not included in the definition.

Getting Your Licence Back

The pathway back to a licence differs depending on which refusal paragraph was charged, because the Act treats alcohol-related refusals and drug-related refusals differently.

Alcohol Interlock — s.49(1)(c), (d), (e)

Section 31KA requires that, on reissue, a licence be made subject to a mandatory alcohol interlock condition for anyone disqualified for an offence under section 49(1). This expressly includes refusing a PBT, refusing to stop at a testing station, and refusing a breath analysis or blood sample.

The interlock prevents the vehicle starting if alcohol is detected on the driver’s breath, and a minimum interlock period applies (Schedule 1B sets a minimum of 6 months) before it can be removed.

Licence Eligibility Order — s.49(1)(ca), (ea), (eb)

Refusing a drug impairment assessment, a hospital blood or urine sample, or an oral fluid sample is excluded from the interlock regime altogether. Instead, section 31A requires the driver to obtain a Licence Eligibility Order (‘LEO’) from the Magistrates’ Court before an application for a new licence can even be made. A Judicial Officer must be satisfied it is appropriate to grant the order before a drug-related refusal offender can get back behind the wheel.

Defences

Everything above concerns whether the prosecution can prove the offence at all: a valid requirement, plus a refusal of it.

Below, there is also a statutory defence that can excuse a refusal even where those elements are otherwise made out, though it is rarely seen in practice.

The “Substantial Character” Defence — and Its Limits

Sections 55(9) and 55E(12) each provide a defence: a person must not be convicted of refusing to furnish a breath sample, or refusing to provide an oral fluid sample, if they satisfy the court that there was “some reason of a substantial character” for the refusal (other than a desire to avoid providing information that might be used against them).

This defence is narrower than it first appears, for two reasons:

1. It only applies to specific paragraphs. The defence in section 55(9) applies only to refusing to furnish a breath sample for analysis (relevant to s.49(1)(e)) — it does not, on its terms, extend to refusing a PBT (s.49(1)(c)) or refusing to stop at a testing station (s.49(1)(d)). The oral fluid equivalent in section 55E(12) applies only to refusing to provide the oral fluid sample itself.
2. Practical unavailability is expressly excluded. Sections 49(1B) and 49(1C) provide that it is not a reason of a substantial character, for the purposes of sections 55(9) or 55E(12), that a breath analysing instrument or prescribed device was unavailable, that no authorised operator was present, or that a medical practitioner or approved health professional was not present at the time of the requirement.

Where a person is genuinely unable to furnish a breath or oral fluid sample for medical reasons or because of a physical disability, the appropriate course under the Act is to comply with the alternative blood sample requirement under section 55(9A) or 55E(13). Doing so does not amount to a refusal, and a person who allows the blood sample to be taken cannot be convicted of refusing to furnish the original sample.

Being Talked Out of Your Rights — DPP v Moore

DPP v Moore [2003] VSCA 90 is not a refusal case — Mr Moore had actually complied with the breath test. What’s significant here is what the police officer advised him about afterwards.

After a breath sample is furnished, section 55(10) gives a driver the right to request, at their own expense, an independent blood sample to check the breath reading. Mr Moore’s reading was 0.074% — narrowly over the 0.05 limit. When he told the testing officer, “it’s my right for a blood test,” the officer talked him out of it, warning that a blood test would likely come back even higher. Mr Moore accepted the advice and never made the request.

The Magistrate excluded the breath certificate and dismissed the charge, and the Court of Appeal unanimously agreed on appeal: an officer who volunteers unsolicited “advice” against exercising the right to an independent blood test and thereby causes the driver to forgo it, risks having the breath certificate excluded altogether, even though it would otherwise be close to conclusive proof of the reading.

A Final Note on Escalation

Because refusal offences and substantive drink and drug driving offences all sit within the same section 49(1), and because section 48(2) treats a conviction under any paragraph as a prior offence for the purposes of any other paragraph, a refusal conviction today can significantly increase the penalty and disqualification period for an unrelated drink or drug driving charge years later. Given the mandatory disqualification periods, the absence of an infringement notice option, and the narrow scope of the available defences, early legal advice is particularly important for anyone facing a refusal charge, even where it appears to be a comparatively minor first offence.