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This article was prepared by Go To Court Lawyers, Australia's largest legal service. For legal advice specific to your situation, call 1300 636 846.
A preliminary breath test in Victoria and an evidentiary breath analysis are tests that use a sample of a person’s breath to estimate their blood alcohol content (BAC), which is the concentration of alcohol in their blood. It is conducted by a police officer on an approved breath analysing instrument. The offences, penalties and rules about breath testing are set out in the Road Safety Act 1986.
Requesting a breath test in Victoria
Police will routinely request a breath test in Victoria after a traffic accident. They also have the power to randomly stop vehicles and request that the driver take part in a preliminary breath test, known as a PBT. They can request a breath test from any person they find driving a motor vehicle on a road-related area, anyone who they believe was in control of a motor vehicle that was involved in an accident in the previous three hours, or any person who they believe was an occupant of a motor vehicle that was involved in an accident in the last three hours if it has not been established who was the driver. They may breath test a person who is instructing or sitting in the seat next to a learner licence holder who was driving on a road-related area or a road. A driver is usually first required to undergo a preliminary breath test (PBT) on a hand-held breath test device. If that test shows that there is alcohol in the driver’s breath, then the police will ask for a breath test, which will usually take place at the police station.
Refusing a breath test
In Victoria, an offence is committed if a person refuses to undergo either a PBT or a breath analysis or refuses to stop or stay for a PBT or accompany the police to the police station and provide a breath or blood test. Refusing a breath test means not only refusing outright but also failing to provide a sufficient sample of breath. This can happen if the person blows too weakly or stops breathing out before there is an adequate sample.
Breath analysis
At the police station, the driver will be asked questions and the answers will be noted and will be used against the driver later in court if they are charged. Whilst it is an offence to refuse to provide a sample of breath, it is not an offence to refuse to answer the questions, other than to provide a name and address. A second police officer will ask more questions before requiring a sample of breath for analysis on a machine that provides a printout of the blood alcohol content. If an insufficient sample is provided for the machine to make a reading, the printout will show that. The police officer will allow three attempts at a reading. If after three attempts there is still an insufficient sample or if the person refuses to give a sample then they may be charged with an offence.
The accuracy of breath analysis
Breath analysis machines always provide a reading that is less than the true blood alcohol concentration. This is due to many factors. There is ongoing debate around the accuracy and reliability of breath analysis machines.
Defences to refusing breath analysis or a breath test in Victoria
It is a defence to the charge of refusing to undergo a breath test in Victoria if there are medical reasons why the driver was not able to take part or provide a good sample for the breath test. There will need to be expert medical evidence of this for the court.
If the police believe there may be a medical reason that a person cannot provide a blood sample, they will often direct the driver to provide a blood sample, which must be done unless it would be medically dangerous to do so. If a blood sample is taken, the driver will be provided with part of the sample if they wish to arrange their own testing.
A driver does not have to submit to a breath test or breath analysis if three hours have passed from the time that the police were entitled to ask them to undergo a test, and does have to submit even if they are at home (unlike in some other states).
There are numerous procedural steps that the police must take before, during, and after they conduct a breath test and if they do not carry them out lawfully then the prosecution may not be successful.
Penalties
For a person's first drink driving offence, the penalty will be a substantial fine and a licence disqualification of two years. For their second conviction, the fine will be much larger, their licence will be disqualified for four years and there is also a maximum of 12 months in jail that can be imposed. For the third or subsequent offence, the maximum jail sentence increases to 18 months.
If you require legal advice or representation in a drink driving matter in VIC, please contact Go To Court Lawyers. You can reach us 24 hours a day on 1300 636 846, contact us online or book a consultation with one of our experienced lawyers.
faqs: - question: 'What constitutes failing to provide a sufficient sample of breath in Victoria?' answer: 'Failing to provide a sufficient sample of breath occurs when a person blows too weakly into the testing device or stops breathing out before an adequate sample is collected. This is treated the same as an outright refusal under Victorian law. Police require a proper, sustained breath sample to obtain an accurate reading on approved breath analysing instruments for both preliminary breath tests and evidentiary breath analysis at the station.' - question: 'Can Victorian police request a breath test from passengers in a vehicle involved in an accident?' answer: 'Yes, Victorian police can request breath tests from any person they believe was an occupant of a motor vehicle involved in an accident within the previous three hours, but only if it has not been established who was driving. Police can also test instructors or supervising drivers sitting next to learner licence holders. This power extends beyond just drivers to ensure all potentially responsible parties are tested.' - question: 'How much does legal representation cost for refusing a breath test charge in Victoria?' answer: 'Go To Court Lawyers offers a fixed $295 consultation fee to discuss your breath test refusal charge in Victoria. During this consultation, our experienced drink driving lawyers will assess your case, explain your options, and provide clear advice on potential defences or strategies. The consultation fee provides you with professional legal guidance to understand the serious penalties you may face and your best path forward.' - question: 'How can a lawyer help if I''m charged with refusing a breath test in Victoria?' answer: 'A lawyer can examine whether police followed proper procedures when requesting the breath test, challenge the validity of the traffic stop, and identify potential defences such as medical conditions preventing adequate breath samples. They can negotiate with prosecutors for reduced charges, represent you in court, and potentially minimise penalties. Legal representation is crucial given the serious consequences including licence suspension and criminal conviction for breath test refusal.' - question: 'Is there a time limit for taking legal action after being charged with refusing a breath test in Victoria?' answer: 'You should seek legal advice immediately after being charged with refusing a breath test in Victoria. Court dates are typically scheduled within weeks of the charge, and early legal intervention allows more time to prepare your defence, gather evidence, and explore options. Delaying legal representation can limit available strategies and may result in missed opportunities to achieve the best possible outcome for your case.' ---