In the Northern Territory, refusing a direction by a police officer to give a breath test is an offence, regardless of whether you were driving or the police suspect you have been driving.
The rules for taking breath samples and the offences and penalties for refusing to give a sample are set out in the Traffic Act.
What is a breath test?
A breath test or breath analysis uses a sample of a person’s breath to find the concentration of alcohol in their body (BAC). It is conducted on an approved breath analysing instrument by a police officer.
As with the other States and the ACT, police in the Northern Territory can stop any vehicle for a random breath test and test the driver (or rider). They can also perform a breath test on a driver, rider or other person who was involved in a crash on either a road, a road-related area or in a public place. They can do this if they believe the person may have been under the influence of alcohol when the crash occurred and it is not more than 4 hours since the crash.
Further breath analyses
If the driver does not provide a sufficient sample of breath, he or she can be arrested and detained for a breath analysis. The police can also detain for breath analysis any person who they believe may have been under the influence of alcohol when they were involved in a crash on either a road, a road-related area or in a public place. They can only do so if not more than 4 hours has passed since the crash. The police can also direct that the person take more than one test.
If, after receiving the result of the first analysis, a person wishes to have a second sample analysed, the police must do so, provided the request is made soon after the person receives the first result.
A police officer must not request a person to have a breath test or breath analysis if they are injured and it may be detrimental to their health to give a test, or if they have a physical disability that prevents them from giving a sufficient breath sample for the test. In these situations, the police can direct the person to provide a blood sample for analysis instead. The police must then make arrangements for the person to be taken to a hospital or health centre for a sample of their blood to be taken.
Offences and penalties – first offence
It is an offence to fail to comply with a police direction to pull over for a random breath test. The maximum penalty for this offence is a fine of 200 penalty units (about $30,000) or imprisonment for 12 months.
It is also an offence to fail to provide a sufficient sample of breath for a breath analysis. A person is taken to have failed to provide a sample of breath if their actions or inaction in any way prevented a breath analysis being performed.
It is also an offence to fail to provide a blood sample if directed. If required to provide a blood sample, then a person must comply with all of the arrangements for taking them to a hospital or health centre and for the taking of a sample of blood.
For these two offences, the penalty for a first offence is a maximum of 10 penalty units (over $1,500) or imprisonment for 12 months. Their licence to drive will also be automatically cancelled for at least 12 months.
Offences and penalties – second and subsequent offences
For a second or subsequent offence the penalty is 20 penalty units (over $3,000) or imprisonment for 12 months. The driver or rider’s licence will also be immediately cancelled for a mandatory period of at least 18 months.
If the mandatory period is less than 5 years the person cannot obtain a licence other than an Alcohol Ignition Lock Program licence (AIL) for an additional period (AIL period ) immediately after the mandatory period of cancellation. This will be for at least 12 months but not more than 3 years.
If the previous conviction was more than 3 years ago there is a compulsory licence cancellation of a minimum of 30 months (or 18 months and 12 months with AIL licence). If it was less than 3 years ago there is a compulsory licence cancellation of a minimum of 5 years.
When deciding if the offence is a second or subsequent offence, convictions for the following offences will also count:
- high range breath or blood alcohol
- medium range breath or blood alcohol
- failing to give blood sample, or
- driving with alcohol in blood (if the driver has a licence that imposes a zero alcohol level).
Defences to failing to supply sufficient sample
It is a defence if the defendant can satisfy the court that it would have been detrimental to their medical condition to provide a breath sample, or that they had other reasonable grounds for failing to submit to a breath analysis. It is not reasonable grounds that the defendant consumed more alcohol after they stopped driving.