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Refuse Breath Test in Tasmania

In Tasmania, the Road Safety (Alcohol and Drugs) Act 1970 is the law that covers the rules and the offences relating to breath testing. Since 1985 the police have had the power to randomly stop any motorist and ask them to provide a sample of their breath to check if they have alcohol in their system. They can also test any person who is attempting to drive, or a person who is sitting in the driver’s seat of a vehicle. The device that is most usually used for a road side test is called an alcotest or alcometer. In the case of random breath tests conducted by a “booze bus”, a full breathalyser unit is usually available for use at the site.

In Tasmania, a breath test or breathalyser check can only be conducted within three hours of the alleged driving.  Police may take a person into custody if they refuse to submit to a breath test, in order that a test may be conducted within the three hours. Police can also breath test any person that they believe was recently driving, or any person that they believe has been involved in an accident or in a death that has been caused by driving.

Refusing a breath test in Tasmania

Alcometer Test

The usual initial testing device used in Tasmania is called the alcotest. The driver has to blow into the alcotest and, if there is present in the breath a level of alcohol that is above the allowed limit, a light will come on. That test cannot be used as proof that the driver is over the limit, however if that test indicates a positive result, then the police will take the driver to a place (usually the police station) where there will be a proper analysis by a breathalyser.

Refusing an Alcometer Test

If the driver refuses to take the roadside alcotest breath test then they commit an offence. The penalty for that offence is a fine of up to $1,400 and a jail sentence of up to six months. They will be arrested for the offence of refusing the test and taken to the police station for a breath analysis test.

Refusing a Breath Test in Tasmania

It is an offence to refuse to obey all of the reasonable directions of the police officer in the taking of the breath analysis test. If a sample of breath is given and there is not enough for the machine to measure the alcohol content, then that will be shown on the print out. If that happens, the police may direct further testing, which will usually be the taking of a blood sample. In refusing to undergo a breath analysis test, or not providing a sample that is sufficient to test, then another offence may be committed. The driver is liable to a fine of between $700 and $4,200 and a term of imprisonment of up to 12 months. If it is the driver’s second or subsequent offence, then it will be a fine of between $1,400.00 and $8,400 and up to 2 years in jail.

Defences to Refusing a Breath Test in Tasmania

Any evidence of a driver’s blood alcohol concentration cannot be used in court if it was taken more than 3 hours after driving or if the driver was not read a statement by the police officer to explain his or her rights and obligations. It is also a defence to the charge if a doctor or other medical practitioner refused to allow the testing of a driver who is in their care. It will also be a defence if the driver can prove that they were unable to either give a sample of their breath, or to give a sufficient sample of their breath on medical or physical grounds which were present at the time of the request. The evidence of a doctor or other medical professional will be needed to prove this. A driver may request that a sample of blood be taken to prove blood alcohol level, however they must still comply with the request for a breath test. If a sample is taken, it will be divided into three parts, one is for the driver, one is for the Government Analyst and the last one is kept safely as a control sample. The Government Analyst will test the sample and advise the police of the result of the test. The driver has a right to have their sample of the blood analysed by a properly qualified professional of their choice.


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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