Have you been charged with Refusing to Undergo a Preliminary Breath Test?
Dribbin & Brown Lawyers regularly represent clients charged with refusing to undergo a PBT or preliminary breath test. We have offices in Dandenong, Geelong, Melbourne CBD, Ringwood, Ballarat, Frankston, Moorabbin and Werribee. Our offices are all not far from the the local Magistrates’ Courts in these areas.
We are familiar with the Courts, the court staff and prosecutors. This gives our firm a great advantage in relation to representing clients charged with drink driving offences.
There are a number of issues to consider if you have been charged with this offence.
- Did you have a legitimate reasons for not complying with police?
- Did you refuse to undergo a preliminary breath test when requested by police?
- Have police both legally and correctly put the demand to you?
- Did you in fact undertake the procedure satisfactorily but police are claiming you didn’t?
- What were the circumstances?
- Have you been charged for similar offences in the past?
It is an offence against the Road Safety Act 1986 (RSA) section 49(1)(c) to refuse to undergo a preliminary breath test. The preliminary breath test (PBT) requires the person to exhale continuously into the Breathalyser device to the satisfaction of the police officer (or in rare instance another authorised officer). This device then provides a reading of a person’s blood alcohol content (BAC). Under section 49(1A), a person may be charged for refusing a PBT even if the officer requesting the PBT does not have the device at the time of requesting the analysis.
Please read below for more information relating to this charge.
The offence
Section 49(1)(c) of the Road Safety Act 1986.
The prosecution must that:
- The defendant refused to undergo a preliminary breath test to the satisfaction of a police officer or another authorised officer as per section 53 of the Road Safety Act 1986.
Section 53 provides officers the power to:
- Require any driver or person in charge of a motor vehicle to undergo a (PBT).
- Require a driver stopped at a preliminary testing station to undergo a PBT.
- Require any person they believe on reasonable grounds to have been driving within the last 3 hours since they were involved in an accident to undergo a PBT.
- Require any person they believe on reasonable grounds to have been an occupant of a motor vehicle within the last 3 hours since they were involved in an accident to undergo a PBT.
Can you legally refuse a PBT in Victoria?
- The answer is complicated, more often than not the answer is no, but there are some circumstances where it may be legally permissible to refuse a request to provide a preliminary breath test.
The penalty
If found guilty of an Offence Involving Alcohol or Other Drugs: Refusing to Undergo a Preliminary Breath Test the maximum penalties are:
- For a first offence, a fine of 12 penalty units.
- For a second offence, a fine of 120 penalty units or imprisonment for a term of 12 months.
- For a third or subsequent offence, a fine of 180 penalty units or imprisonment for a term of 18 months.
Further, pursuant to section 50(1B), if a person is convicted or found guilty of an offence against section 49(1)(c) for refusing to undergo a PBT when requested to do so, the court must suspend that person’s driver licence or learner permit, and disqualify them from driving for a minimum period of:
- 2 years for a first offence.
- 4 years for any subsequent offence.
Where will my case be heard?
Driving Offences Involving Alcohol or other Drugs cases will be heard will be heard in the Magistrates Court.
Questions to consider
- Do you have a defence?
- Have the police correctly put the demand?
- Had it been longer than three hours since you last drove a motor vehicle?
- If you are pleading guilty, what can you do to minimise your sentence?
What to do next?
Preparation is always so important in relation to any matter that is before the courts.
If you have been charged with refusal to undergo a preliminary breath test and if your driver’s licence is important to you, don’t go to court unrepresented. Consider how much it will cost you to be disqualified from driving for 2 years. If you have previously committed an offence of driving under the influence of drugs or alcohol the penalties will be more severe, you may receive a term of imprisonment.
For the purposes of disqualification, section 50AA of the RSA deems driving offences for which you were convicted over 10 years ago not to be a prior offence. However, it is still at a Magistrates’ discretion to disqualify you from driving for longer than the mandatory 2 year minimum.
The police and the courts take driving offences very seriously to avoid severe penalties you should be represented; Dribbin & Brown Lawyers are experienced in handling these types of matters. We regularly appear in court to represent people charged with driving offences.
The Reduced Legislation
Section 49 Offences involving alcohol or other drugs
(1) A person is guilty of an offence if he or she—
(c) refuses to undergo a preliminary breath test in accordance with section 53 when required under that section to do so; or
(1A) A person may be convicted or found guilty of an offence under paragraph (c), (ca), (e), (ea) or (eb) of subsection (1) even if—
(a) in the case of an offence under paragraph (c), a prescribed device was not presented to the person at the time of the making of the requirement; and
(b) in the case of an offence under paragraph (ca)—
(i) a requirement to undergo an assessment of drug impairment was not made at a place where such an assessment could have been carried out; and
(ii) a police officer authorised to carry out an assessment of drug impairment was not present at the place where the requirement was made at the time it was made; and
(c) in the case of an offence under paragraph (e)—
(i) a breath analysing instrument was not available at the place or vehicle where the requirement was made at the time it was made; and
(ii) a person authorised to operate a breath analysing instrument was not present at the place where the requirement was made at the time it was made; and
(iii) the person requiring a sample of blood had not nominated a registered medical practitioner or approved health professional to take the sample; and
(iv) a registered medical practitioner or approved health professional was not present at the place where the requirement was made at the time it was made; and
(d) in the case of an offence under paragraph (ea)—
(i) the police officer requiring a sample of blood had not nominated a registered medical practitioner or approved health professional to take the sample; and
(ii) the police officer requiring a sample of urine had not nominated a registered medical practitioner or approved health professional to whom the sample was to be furnished for analysis; and
(iii) a registered medical practitioner or approved health professional was not present at the place where the requirement was made at the time it was made; and
(e) in the case of an offence under paragraph (eb)—
(i) a prescribed device was not presented to the person at the time of the making of the requirement; and
(ii) a prescribed device was not available at the place or vehicle where the requirement was made at the time it was made; and
(iii) a person authorised to carry out the prescribed procedure for the provision of a sample of oral fluid was not present at the place where the requirement was made at the time it was made; and
(iv) the person requiring a sample of blood had not nominated a registered medical practitioner or approved health professional to take the sample; and
(v) a registered medical practitioner or approved health professional was not present at the place where the requirement was made at the time it was made.
(1B) To avoid doubt, in proceedings for an offence under paragraph (e) of subsection (1) a state of affairs or circumstance referred to in subsection (1A)(c)(i) or (ii) is not a reason of a substantial character for a refusal for the purposes of section 55(9).
(1C) To avoid doubt, in proceedings for an offence under paragraph (eb) of subsection (1) a state of affairs or circumstance referred to in subsection (1A)(e)(i), (ii) or (iii) is not a reason of a substantial character for a refusal for the purposes of section 55E(12).
(3) A person who is guilty of an offence under paragraph (ba), (c), (ca), (d), (e) or (ea) of subsection (1), other than a supervising driver offence, is liable—
(a) in the case of a first offence, to a fine of not more than 12 penalty units; and
(b) in the case of a second offence, to a fine of not more than 120 penalty units or to imprisonment for a term of not more than 12 months; and
(c) in the case of any other subsequent offence, to a fine of not more than 180 penalty units or to imprisonment for a term of not more than 18 months.
(3AA) A person who is guilty of a supervising driver offence is liable to a fine of not more than 5 penalty units.
