Refusing a Blood Test in Victoria

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In Victoria, criminal offences relating to drink driving are set out in the Road Safety Act 1986 and the Road Safety (General) Regulations 2009. It is an offence to refuse to give a breath sample or a blood sample when required to do so by the police. This article outlines the offence of refusing a blood test in Victoria, including the legal consequences, defences available, and your rights during the blood testing process.

Understanding the legal framework surrounding blood testing is crucial for Victorian drivers, as the penalties for refusing a blood test can be severe and may include licence disqualification, substantial fines, and even imprisonment. The legislation provides police with significant powers to obtain blood samples in specific circumstances, making it essential to know when these powers can be exercised.

When can the police test you?

In Victoria, police have the power to require a person to provide a blood sample if:

• they have been assessed for impairment by a drug and, in the police's assessment may be impaired by drugs (section 55B);
• the police reasonably believe that the person was driving a vehicle that was involved in an accident that resulted in death or serious injury (section 55BA)
• the person is aged 15 or older and has been brought to a place for treatment after a motor vehicle accident (section 56).

Drug impairment assessments

Police officers must follow specific protocols when conducting drug impairment assessments. These assessments typically involve observing the driver's behaviour, coordination, and physical appearance. If the police officer reasonably suspects drug impairment following this assessment, they can require a blood test to determine the presence and concentration of drugs in the person's system.

Accident-related blood testing

When a motor vehicle accident results in death or serious injury, police powers to require blood testing are expanded significantly. The officer must have a reasonable belief that the person was driving the vehicle involved in the accident. This provision ensures that serious traffic accidents can be properly investigated to determine if alcohol or drug impairment was a contributing factor.

How is a blood test conducted?

The blood sample will be taken by a registered medical practitioner or approved health professional nominated by the police officer. The police may require the person to accompany them to a place where the blood sample is to be taken and to remain there until the sample is taken.

The blood test itself is taken by a syringe is distributed amongst three containers. Two remain to be tested at the hospital or health facility, and one is given to the person who supplied the sample (Road Safety Regulation 11). This gives the alleged offender a chance to have their sample tested independently if they decide to do so.

Medical professional requirements

Under Victorian law, only qualified medical practitioners or specifically approved health professionals can take blood samples for legal proceedings. This ensures the integrity of the sample and compliance with medical standards. The health professional must follow strict protocols regarding sample collection, labelling, and chain of custody procedures.

Sample integrity and storage

The three-container system is designed to maintain the integrity of evidence while protecting the rights of the accused. The containers must be properly sealed and labelled, with detailed records maintained throughout the process. This system allows for potential retesting and helps prevent disputes about sample contamination or mishandling.

Refusing a blood test

Refusing a blood test is an offence under section 49 of the Road Safety Act. If a person refuses a blood test that has been reasonably requested by a police officer, they will be considered to have committed the offence of driving under the influence.

A person may also be charged with an offence if they obstruct a health professional from obtaining a blood sample from another person, or act in any way that may prejudice the taking of a blood sample. This includes physical resistance, verbal threats, or any behaviour that interferes with the blood testing process.

What constitutes refusal?

Refusal can take many forms beyond simply saying "no" to a blood test. It includes failing to accompany police to the testing location, leaving the testing facility before the sample is taken, or engaging in behaviour that makes it impossible for the health professional to obtain a proper sample. Even passive non-compliance can be considered refusal under Victorian law.

Penalties

For a first offence, the alleged offender may receive a substantial fine. Any second time offender may receive a substantial fine as well as a term of imprisonment of up to 12 months. Subsequent offences will also attract a substantial fine, and a longer sentence of up to 18 months imprisonment.

It is also important to note that upon convicting an offender, the court is required to cancel the offender's licence and disqualify them from obtaining a licence for a period of two years for a first offence and for up to four years for a subsequent offence.

Defences

A person cannot be held liable for failing to produce a blood sample in circumstances where they are legitimately unable to provide a blood sample. Valid defences may include medical conditions that prevent blood sampling, such as severe bleeding disorders, or circumstances where the person was physically incapable of providing consent due to their medical condition.

Blood test results as evidence of offences

There are many requirements that must be met before the results of blood test can be used against you in any court proceedings, and therefore it is important to know your rights. As an example it is important to note that all blood samples must be taken within three hours of the alleged offence or they cannot be used against you in court proceedings.

Time limitations and procedures

The three-hour rule is strictly enforced in Victorian courts. This time limit ensures that the blood alcohol or drug concentration reading accurately reflects the person's state at the time of driving. Police must also follow proper procedures for requesting the blood test, including clearly explaining the consequences of refusal and ensuring the person understands their obligations.

Your rights during blood testing

Victorian law provides several important protections for individuals required to undergo blood testing. You have the right to understand why the test is being requested and what legal authority the police are using. You also have the right to receive one of the three sample containers for independent testing.

Legal representation

While you may not be entitled to have a lawyer present during the blood testing procedure, you have the right to seek legal advice about the testing requirement and its implications. It's advisable to contact a lawyer as soon as possible if you're facing charges related to refusing a blood test.

Impact on driving privileges

The consequences of refusing a blood test extend beyond immediate criminal penalties. A conviction will result in automatic licence cancellation and disqualification periods that can significantly impact your ability to work and maintain normal daily activities.