Police officers in Tasmania have broad powers to require you to undertake a breath test, whether or not they suspect that you have driven a motor vehicle under the influence of alcohol. The rules for how breath tests are conducted are contained in the Road Safety (Alcohol and Drugs) Act 1970. The Road Safety (Alcohol and Drugs) Regulations 2009 also provide rules on how breath tests can be conducted. If you refuse to take part in a breath test, you may commit a criminal offence.
There are two different types of tests you may be required to take by a police officer: a breath test and a breath analysis. A breath test is taken with a handheld device, which you have probably seen if you have ever been pulled over randomly to take a breath test. A breath analysis will usually only be required if you have taken a breath test which suggested you drove a motor vehicle with a prescribed concentration of alcohol in your blood (i.e. an amount of alcohol which causes you to commit the criminal offence of driving under the influence of alcohol).
A police officer can pull you over randomly for the purposes of taking a breath test if you are driving a motor vehicle on a public street. They do not need to suspect that you have drunk alcohol. The police officer can direct you to stop your vehicle for the purposes of taking the test. You are required to comply with any requirements made by the police officer and take the breath test in accordance with the police officers’ directions. However, police officers are under a duty to not detain you for a period longer than is necessary for you to take the breath test.
Police officers can require you to take a breath test in other, more specific circumstances. Specifically, in Tasmania a breath test may be required in the following circumstances:
- If a police officer suspects you have driven a motor vehicle under the influence of alcohol on a public street because they find you in particular circumstances which suggest that, immediately prior to them finding you, you were driving a motor vehicle while the alcohol was present in your blood (e.g. if you get out of your car with an open beer bottle);
- If a police officer reasonably believes you have committed one of a number of offences (for example, an offence of causing death by dangerous driving); or
- If a police officer reasonable believes that you were the driver of a motor vehicle that has been involved in an accident.
As mentioned above, you will generally only be required to take a breath analysis if you have already taken a breath test. This is the case when you are stopped randomly for a breath test. In the situations mentioned under the heading, “Other circumstances where breath test may be required” above, the police officer may direct you to take a breath analysis without first taking a breath test. Generally speaking, if a police officer requires you to take a breath analysis they can require you to take the breath analysis in a particular place such as a police station or in a small portable building (which will often be the case with random breath tests). If the police officer has reasonable grounds to believe you will not comply with a direction to take the breath analysis in a particular place, they can take you into custody for the purposes of taking the analysis. They will also give you the option of giving a sample of your blood for testing, in which case you may be required to go to a hospital for the sample to be taken. If you have been in an accident and are taken straight to hospital, a police officer cannot require you to take a breath analysis on the advice of the doctor taking care of you, but they can require that doctor to take a sample of your blood for testing.
Generally speaking, in Tasmania it is a criminal offence to not follow a police officer’s requirements or directions for taking a breath test or a breath analysis. It is also a criminal offence to refuse to take a breath analysis, unless you have a physical or mental condition that prevents you from doing so. The maximum penalty for these offences is imprisonment for 6 months, a fine of 10 penalty units or both. You may also be disqualified from driving for up to 3 years.