Refusing to take a preliminary breath test when you are required to do so is an offence, even if you haven’t had anything to drink. So, you must take a breath test, but what if you don’t? There are some defences for not taking a breath test in Victoria.

You can take a breath test elsewhere, but it is usually at the roadside at or near where you were stopped. The preliminary breath tester is a hand-held device that a police officer holds with a plastic tube connected, that you blow into continuously. You have to take a deep breath.

A police officer is able to legally request a breath test from you if they saw you driving, you had to stop at a breath testing station, or that the police officer has reason to believe that you have been driving in the last three hours and were involved in an accident. Additionally, a breath test can be performed if the police don’t know who was driving the car, but they believe that the car has been involved in an accident, and you were in the car within the last three hours.

The police have to do better than just believing that someone was driving a car to require a breath test. Examples may include situations where the police didn’t directly see the person driving, but other people did or think the person had been drinking/was drunk. This is not enough to warrant a breath test of that person. If more than three hours have passed since the driver stopped driving, the police are no longer allowed to breath test that person.

     You can refuse a breath test on the following grounds:

• The police did not see you driving
• The police did not see you driving within three hours of the breath test request
• The police wanted to take you away from the scene and you do not consent to moving elsewhere
• The police gave inadequate instructions about how to take the breath test
• You had a mental impairment that meant you couldn’t understand the requirement to take the test
• You actually didn’t refuse at all

     What does a refusal look like in real life?

Refusals in real life look different to when we write them down as a list. For example, if you say directly, ‘No I will not take the test’, then this is obvious. If you don’t say anything at all, it might be inferred, but if you don’t blow hard enough or long enough, you can be accused of refusal to take the test. This can be disputed.

If you can’t quite muster up the lung power to blow into the tube, then you have not refused to take the test – a refusal must be on purpose. If you have asthma or a chest infection, blowing may not be possible. If you are in some way unable to take the test, this does not constitute a refusal.

If you blow weakly or stop blowing so a good sample can’t be achieved, the machine can’t register a result, so this can be construed as a refusal to take the test. This has to happen at least twice before a refusal can be announced.

If you or someone you know has been charged for refusing to take a breath test, contact Vanessa Ash Lawyers for a free, confidential chat. We may be able to help.

Got a drink-driving charge? Call Vanessa Ash and Associates today.