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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.
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.
Penalties
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.
If you require legal advice or representation in a drink driving matter in WA, 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 happens if I''m unable to provide a breath sample due to a medical condition?' answer: 'You will still be arrested and taken to the police station for alternative testing. If you cannot provide a breath sample due to a genuine medical or physical condition, police will direct you to undergo blood or urine analysis instead. The testing will be conducted by a qualified nurse or medical practitioner at the station.' - question: 'Can police stop me randomly for a breath test in Western Australia?' answer: 'Yes, police have broad powers to stop any vehicle and request breath samples in WA. Under the Road Traffic Act 1974, they can test drivers after traffic violations, accidents, or stop vehicles randomly. They can also test anyone suspected of driving a vehicle involved in an accident or instructing learner drivers.' - question: 'How much will legal representation cost for a breath test refusal charge?' answer: 'Go To Court Lawyers offers a fixed consultation fee of $295 to discuss your breath test refusal case. During this consultation, we''ll assess your specific circumstances, explain the potential penalties you''re facing, review the evidence against you, and provide clear advice on your legal options and defence strategies available.' - question: 'How can a lawyer help with my breath test refusal charge?' answer: 'A lawyer can challenge the legality of the police stop, examine whether proper procedures were followed, and identify potential defences such as medical inability to provide samples. We can negotiate with prosecutors, represent you in court, potentially reduce penalties, and ensure your rights were protected throughout the testing process.' - question: 'How urgent is it to get legal help for refusing a breath test?' answer: 'It''s crucial to seek legal advice immediately after being charged with breath test refusal. Court dates are typically scheduled quickly, and early legal intervention can significantly impact your case outcome. Prompt action allows your lawyer more time to gather evidence, prepare defences, and potentially negotiate better outcomes before court proceedings.' ---