Refusing a Blood Test in Victoria
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.
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).
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.
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.
Penalties
Fort 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.
Defence
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.
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.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.