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Refusing a breath test in South Australia

Like the other States and Territories in Australia, it is an offence to drive in South Australia if you have above a prescribed concentration of alcohol in your blood.  The prescribed concentration is, for provisional licence holders, anyone who is not authorised to drive a motor vehicle or anyone who is driving a prescribed vehicle, any concentration; and for other drivers 0.05 grams of alcohol per 100mls of blood. A breath test by a police officer is the main source of evidence used in proceedings for drink driving offences to show an offender had on or above this prescribed concentration when the offence occurred.  Because of this, and subject to certain available defences, it is an offence to refuse to take an alcotest (a form of breath test) or a breath test when required.  The rules for taking an alcotest or breath test are in the Road Traffic Act 1961 and the Road Traffic (Miscellaneous) Regulations 2014 .

Refusing a breath test in South Australia is an offence.

Police powers to require a breath test

Police officers in South Australia have extensive powers to randomly stop cars and require drivers to submit to an alcotest and (if necessary) a breath test, including powers to set up driver testing stations in the vicinity of any road or certain major events. Drivers involved in accidents or who commit driving offences will also be required to take an alcotest or a breath test. An alcotest is taken using a small device which the police officer will ask you to exhale into while you remain in your car. If that test suggests you have above the prescribed concentration of alcohol in your system, you will be required to take a breath test using a larger breath analysis machine. You may also be asked to take this test at a local police station. A valid breath test requires two samples of your breath to be analysed, with an interval of at least 2 minutes but no more than 10 minutes between tests. A police officer at a random breath testing station cannot require you to take a breath test if you have not first taken an alcotest.

Refusing to a breath test in South Australia

In South Australia, it is an offence to refuse to take an alcotest or a breath test when required to do so by a police officer. It is also an offence to fail to comply with all of the reasonable directions of the police officer in relation to the conduct of the breath test. When you first refuse the test, you will receive oral advice from the police officer requiring the test of the consequences of your refusal (ie that it is an offence), and that you can request a sample of your blood to be taken.

Penalties for refusal

The maximum penalty for this offence is, provided you have never committed another drink driving offence, a fine of $1,100 to $1,600, automatic disqualification from driving for at least 12 months, and 6 demerit points. If you have committed a drink driving offence before, the maximum penalty is a fine of $1,900 to $2,900, automatic disqualification from driving for at least 3 years, and 6 demerit points. Immediately after refusing to take the test, the police officer must give you oral advice of the consequences of refusing to take the test.

Defences to refusing to take a breath test

There are a number of defences to the charge of refusing to take an alcotest or breath test. The first is if the requirement or direction to take the test was not lawfully made. The second is if you were not given an opportunity to take the test after receiving oral advice from the police officer about the consequences of refusing to take the test or of your right to request a blood test. If you have a good reason for refusing the test then this too may be a defence. This includes failure to take the test because of a physical or mental condition, but only if you requested that a sample of your blood be taken by the police officer requiring the test (regardless of whether that sample was actually taken) or taking the sample was not possible because of that condition. It is not a defence to a refusal to comply with a request to give a breath test that taking the test would incriminate you.

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