Refusing a Breath Test in Queensland

In Queensland, breath tests measure the concentration of alcohol in blood and are used to determine whether a driver has exceeded the legal limit while in charge of a vehicle. Saliva tests are used to detect drugs other than alcohol in a driver’s system. The Transport Operations (Road Use Management) Act 1995 governs how and when breath tests are carried out and the penalties for refusing a breath test in Queensland.

When can the police breath test a person?

Breath tests can be conducted by Queensland Police following a vehicle collision or after a person has been charged with an offence related to alcohol, drugs or the use of a vehicle. They can also be conducted at random. The police do not have to suspect that a person has been drink driving or drug driving in order to require them to take a breath or saliva test.

Breath test processes

If a driver is flagged down by police, they must stop the vehicle. It is an offence to fail to stop when asked to do so by police unless there is a reasonable excuse - for example, if stopping would endanger lives.

The police officer may ask the driver for their name, address, and driver’s licence. If they do ask for these details, you are required by law to respond truthfully. However, the police officer may just request you to take the test without providing this information. The police officer will then request you to blow slowly and steadily into a tube which is attached to a breath analyser.

If this initial breath test shows you are over the legal limit for your class of licence, you will be required to take a second test on a more advanced machine that provides a more accurate reading. This second test may be at the closest police station, or at a ‘booze bus’. The police may use ‘such force as is necessary’ to get you there to a police station for this test if you do not cooperate. If the second test shows that your blood concentration level is over the legal limit, you will be charged with an offence.

The police can also breath test another person in the vehicle if they believe that they were driving prior to the vehicle being pulled over. The police can also request that a person give a breath test if they reasonably suspect that in the three hours prior the person drove a car, tram or train, attempted to put a car, tram or train in motion, or was in charge of a car, tram or train.

Refusing a breath test in Queensland

You must provide a breath test to the police when asked to do so. Under section 80(5A) of the Act, a refusal to take a breath test is a serious offence, regardless of whether or not the driver has actually consumed any alcohol or drugs. A term of licence suspension will be imposed for this offence, as well as a fine and/or a term of imprisonment. A person who refuses a breath sample will have their license immediately suspended, and will not be authorised to drive until the matter has been dealt with by a court.

The only circumstance in which a person may lawfully refuse to provide a breath test is if they cannot provide one for medical reasons (for example you cannot blow at the required strength and for the required duration).

Penalty for refusing a breath test

The penalty for failing to take a breath test is the same as the penalty for blowing an alcohol blood concentration level of 0.15% or above. This offence attracts a minimum six-month license disqualification, a $4000 fine, or a term of imprisonment of up to six months. A custodial sentence is more likely to be imposed if there was a vehicle collision involved.

Defences to refusing a breath test

Under 80(5B) of the Transport Operations (Road Use Management) Act 1995 provides the defences available for refusing to provide a breath specimen. They include:

• That the driver was medically incapable of providing a breath specimen or that doing so would have been adverse to their health;
• That the police required the breath test unlawfully;
• That there was some other substantial reason that the person could not provide the specimen.

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