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Refusing a Breath Test in Western Australia

In Western Australia, as in all other states of Australia, the police have the authority to stop vehicles and require the driver or another defined person to take certain tests to check how much alcohol they have in their blood (their Blood Alcohol Content).

There are two tests that drivers in Western Australia may be asked to take. The first is known as a preliminary breath test and is performed away from a police station. If that test detects the presence of alcohol in the driver’s breath then they will be asked to undertake a second breath test or a blood or urine test. The rules that govern these offences are set out in the Road Traffic Act 1974.

Police may request a breath test after any traffic violation or accident. They also have the authority to request a breath sample from anyone who they suspect may have been the driver of a vehicle that was involved in an accident, if they do not know the identity of the actual driver. Police can also stop any vehicle and request a breath sample from any person who is or was driving or attempting to drive or ride the vehicle, or who is instructing a learner driver on a road or on a road-related area.

Refuse Preliminary Breath Test

In Western Australia, a person can be charged with refusing a breath test if they refuse to provide a sample for a preliminary breath test.  They will be arrested and may be taken to the police station. If they are unable to provide a sample due to a medical or physical condition, then they will also be taken to a police station. At the police station they will be directed to provide a breath analysis, or a blood or urine analysis. If the police request a sample of blood or urine, then the test will be undertaken by a nurse or a medical practitioner. It is an offence to refuse to provide a sample for these tests.

Refuse Breath Analysis

If the police officer directs that a person undertake a breath analysis it will be usually be done at the police station with a machine that measures the blood alcohol content and provides a print out. If an insufficient sample of breath is provided for the machine to make a reading, the print out will show that. In those cases, the police will then direct further testing, usually by the taking of a blood sample. Refusing to provide a breath sample for analysis, or another type of sample if directed, is an offence.

Defences to Refuse a Breath test or a Preliminary Breath Test

 A person does not have to provide a sample of their breath for analysis if more than 4 hours have passed since the time when the police could have requested that test. A person does not have to provide a sample of their breath if they are unable to do so due to medical or physical reasons. Medical evidence will usually be needed to prove this. If a person is in hospital or is receiving treatment for an injury then the police can direct the treating medical officer to take a blood test to determine the blood alcohol concentration, unless it would be medically dangerous to do so. If a blood sample is taken, the driver will be provided with their own sample so that they can arrange their own testing.


For the offence of refusing a preliminary test the penalty is a fine and a minimum disqualification of 3 months for the first offence and 6 months for any further offence. In deciding if it is a first offence, the court will count other drink driving or drug driving offences as a previous offence.

For the offence of refusing a breath test the penalty is a fine and a minimum disqualification of 10 months for a first offence, 30 months for a second and life disqualification for any further offence.   A community based order  can be imposed for a first offence, and a community based order  or an intensive supervision order  also be imposed for a second or subsequent offence, however that order must include community work.


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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