Refusing a Breath Test in the Northern Territory

In the Northern Territory, police have the power to breath test drivers to determined whether they have consumed alcohol. Refusing a direction by a police officer to take part in a breath test is an offence. The rules for taking breath samples and the offences and penalties for refusing to give a sample are set out in the Traffic Act 1987.

What is a breath test?

A breath test or breath analysis uses a sample of a person’s breath to find out the concentration of alcohol in their body (BAC). It is conducted on an approved breath analysing instrument by a police officer.

When can police carry out a breath test?

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 an accident on 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 four hours since the crash.

Further breath analyses

If a driver does not provide a sufficient sample of breath when asked to take part in a breath test, he or she can be arrested and detained for a breath analysis.

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 in the following circumstances:

• if they are injured;
• if it may be detrimental to their health to give a test;
• 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.

Offence of refusing a breath test

It is an offence under section 29AAE of the Traffic Act to fail to provide a breath sample. 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. The maximum penalty for this offence is a fine of 200 penalty units or imprisonment for 12 months.

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 or imprisonment for 12 months. A person’s licence to drive will also be automatically cancelled for at least 12 months.

For a second or subsequent offence the penalty is 20 penalty units or imprisonment for 12 months. The driver’s licence will also be immediately cancelled for a mandatory period of at least 18 months.

What is a second offence?

An offence will be dealt with as a second offence if the person has a prior conviction for any of the following offences:

• driving with high range breath or blood alcohol
• driving with 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).

Alcohol ignition lock

A person who is found guilty or refusing a breath test may be required to obtain an Alcohol Ignition Lock Program licence (AIL) for an additional period (AIL period ) immediately after the mandatory period of licence cancellation. This will be for a period of at least 12 months but not more than three years.

An AIL licence permits a person to drive only if their vehicle is fitted with an alcohol ignition lock, which prevents the vehicle from starting if there is alcohol in the driver’s breath. The driver must bear the costs of having the device installed at the beginning of the AIL licence period, and removed at the end of the period.

Defences to failing to supply sufficient sample

A person has a defence to a charge of refusing a breath test if it would have been detrimental to their medical condition to provide a breath sample, or if they had other reasonable grounds for failing to submit to a breath analysis.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.

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