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Refusing a Breath Test in Queensland

Breath tests measure the concentration of alcohol in blood and are used to determine whether a driver has exceeded the legal limit of alcohol permitted to be in their system while in charge of a vehicle. Saliva tests are used to identify illicit drugs in a driver’s system. Breath tests can be used by police following a vehicle collision or they can be used at random in a ‘random breath test’. The police do not have to suspect you have been drink -driving in order to request that you take a breath test.

Looking for information on refusing a breath test in states other than Queensland? Click here.

Refusing a breath test in QLD is a serious offence

The process of getting breath tested

If you are flagged down by a police officer in order to be breath tested, you must stop your vehicle. Failing to do so can attract a $6000 fine. The only defence available for not stopping your car is if there is a reasonable excuse; for example, stopping would endanger lives.

Once you have stopped, the police officer may ask you for your name, your address, and your driver’s license. If they do ask for these details, you are required by law to respond truthfully. Failure to do so is an offence. However, the police officer may just request you to take the test without 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 of 0.05%, you will then 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’. If this second test shows that your blood concentration level is over the legal limit, you will be charged with drink driving.  Under section 80(5) of the Transport Operations (Road Use Management) Act 1995, if you refuse to attend a police station for this second test, the police may use ‘such force as is necessary’ to get you there.

The police can also breath test another person in the vehicle if they believe that they were driving prior to 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 had driven 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. Under section  80(5A) of the Act, a refusal to take a breath test is a serious offence, regardless of whether or not you have actually consumed any alcohol or drugs. The offence is called ‘failing to provide a breath specimen’ and carries serious consequences which are more severe than the penalties you would face if you blew an alcohol level over the legal limit. This is to avoid people with high blood alcohol levels refusing to take the test in order to avoid drink-driving charges. The only circumstance in which you may lawfully refuse to provide a breath test is if you cannot provide one for medical reasons (for example you cannot blow at the required strength and for the required duration). There are two possible offences regarding a refusal to provide a breath test: the offence of not providing a breath test at the roadside, and a more serious offence of refusing to provide a breath test at the police station or ‘booze bus’.

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 usually attracts a minimum of a six month license disqualification, a $4000 fine, or a possible six month jail sentence. A custodial sentence is more likely if there was a vehicle collision involved. Your license will immediately be suspended and you will not be authorised to drive on it until the matter has been resolved in Court.

Defences to refusing a breath test

Article 80(5B) of the Transport Operations (Road Use Management) Act 1995 provides the defences available for refusing to provide a breath specimen. They include: providing a certificate from a doctor stating that the person is incapable of providing a breath specimen and to do so would be adverse to their health; the requisition of the breath or saliva specimen was unlawful; or that there was some other substantial reason that the person could not provide the specimen that is unrelated to their desire to avoid conviction.


Michelle Makela

Michelle Makela is one of our Legal Practice Directors and the National Practice Manager. She holds a Bachelor of Laws, a Bachelor of Science (Psychology) and a Master’s in Criminology. Michelle has had a varied career, working in commercial litigation, criminal law, family law and estate planning. Michelle joined Go To Court Lawyers in 2011. She now supervises a team of over 80 solicitors across Australia.

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