Breath testing in the ACT (Australian Capital Territory) is regulated by the Road Transport (Alcohol and Drugs) Act 1977. Under this Act, police officers can, in certain circumstances, require you to undertake a breath test for the purposes of determining whether you have driven a motor vehicle under the influence of alcohol. If you refuse to participate in such a test, you may commit a criminal offence.
Breath testing in the ACT may be conducted using either of two different kinds of devices. The first is an “alcohol screening device”; this is the hand held device that is used to test your breath, for example, when you are randomly pulled over (i.e. an “alcohol screening test”). A “breath analysis instrument” is usually only used to check your breath for alcohol once an alcohol screening device suggests you have driven a motor vehicle under the influence of alcohol (i.e. for a “breath analysis”). Only certain devices which are named in the Road Transport (Alcohol and Drugs) Regulations 2000 are permitted to be used as an “alcohol screening device” or a “breath analysis instrument”.
Under the Road Transport (Alcohol and Drugs) Act 1977, different rules apply to determine when you can be breath tested if you are a driver, a driver trainer, have been involved in an accident, and whether you have possibly committed an offence of culpable driving. When you have not been involved in an accident and have not committed culpable driving, you can be randomly breath tested by a police officer if you are a driver or a driver trainer using an alcohol screening device, which is most likely to happen if you are pulled over at a random testing station. It is an offence not to follow the directions of the police officer when you are randomly breath tested. Furthermore, a police officer can require you to stay for up to 30 minutes in a particular place for breath testing with an alcohol screening device if they suspect that you have alcohol in your blood and an alcohol screening device is not readily available. You may be required to take more than one alcohol screening test.
If you are involved in a car crash, a police officer can require you to undertake one or more alcohol screening tests, regardless of whether you were the driver of the motor vehicle or a driver trainer. In both situations, you must follow the directions of the police officer; failure to do so is an offence. You can be required to stay in a particular place for up to 30 minutes for the purpose of taking the alcohol screening test.
If a police officer reasonable suspects that you have committed an offence of culpable driving, or that you were the driver trainer of such a driver, you may be required to undertake an alcohol screening test. You can be required to stay in the place of alcohol testing for maximum period of 30 minutes.
If you undertake an alcohol screening test in one of the above situations and the alcohol screening test suggests that you have a prescribed concentration of alcohol in your blood (ie an amount sufficient to commit an offence of driving under the influence of alcohol), or if you failed to comply with an alcohol screening test, a police officer can take you into custody and to a police station or other convenient place for the purposes of taking a breath analysis using a breath analysis instrument. You must then give a sample of your breath for breath analysis in accordance with any reasonable directions made by the police officer. Only an authorised police officer can administer a screening test. As soon as possible after the test is done, the authorised police officer must give you a written report of the results of the breath analysis. The police officer must take all steps they practically can to ensure the public cannot tell you are taking a breath analysis.
As mentioned above, failing to comply with a police officers’ directions or failure to submit to breath testing in the ACT can be a criminal offence. For example, failing to stay to take a screening test when directed to do so by a police officer is an offence punishable by a fine of up to 20 penalty units. Refusal to provide a sample of your breath is an offence punishable by a maximum fine of 30 penalty units. Refusing to take part in a screening test generally is also an offence punishable by a maximum fine of 30 penalty units. You may also face a period of imprisonment.