Refusing to provide a breath test in Queensland is a criminal offence. A person who is lawfully required by police to provide a breath test must comply with that requirement. Failure to do so may result in a charge for refusing a breath test.
The offence arises from the refusal itself. Proof of alcohol assumption or blood alcohol concentration is not required. Refusal offences are often treated more seriously than low-range drink driving offences.
When can police lawfully require a breath test?
Police may require a person to provide a breath test in a number of circumstances. This includes when the person is driving a motor vehicle and in situations where police reasonably suspect that the person has recently been driving. Breath tests may also be required during random breath testing operations, traffic stops, or following a motor vehicle accident where alcohol is suspected to be involved.
A preliminary breath test or preliminary test may be conducted roadside as part of random breath testing.
What counts as a refusal under Queensland law?
A refusal is not limited to a verbal refusal. A failure to provide a breath sample may constitute a refusal. Deliberately interfering with the breath analysis or testing process may also constitute a refusal. Police can treat this conduct as a refusal of a breath test because the person is failing to comply with the request.
Does it matter whether the request is roadside or at the station?
Roadside breath tests are generally preliminary screening tests. If a person refuses a roadside test or a random breath test, police may require the person to attend a police station. Once at the station, refusal to provide a breath test is treated seriously. That refusal commonly forms the basis of the charge.
What if I ask to speak to a lawyer before providing a sample?
A request to speak to a lawyer or seek legal advice does not delay the requirement to provide a breath sample. Police are not required to wait for legal advice to be obtained. A refusal while waiting to speak to a lawyer can still constitute an offence.
What penalties apply for refusing a breath test?
Refusing a breath test carries significant penalties. If a person is found guilty and convicted, the court must impose a period of licence disqualification. Disqualification periods for refusal offences are usually longer than those imposed for low-range drink driving. The court may also impose a fine, expressed in penalty units or as a maximum fine, and imprisonment is available under the legislation.
How does a refusal affect my licence immediately?
Police may impose an immediate licence suspension for a period of 24 hours following a refusal. Driving during an immediate suspension period constitutes a separate offence, and further licence consequences apply once the matter is dealt with by the court.
Is refusing a breath test treated more seriously than a high-range reading?
Courts regard refusal as an attempt to avoid the operation of the testing regime established under road safety legislation. As a result, refusal offences may attract penalties comparable to some high-range drink driving offences, particularly where there is the same prior offence or the driver has previously committed a similar offence.
Are there any defences to a refusal charge?
A defence may arise where a person was physically incapable of providing a sample due to a genuine medical condition. A defence may also arise where police did not lawfully require the test under the Road Traffic Act or other main legislation. Each case really depends on the evidence available.
What usually happens in court for a refusal offence?
Refusal charges are dealt with in the Magistrates’ Court. The court will consider police evidence, including body-worn camera footage and notes. If the refusal is proven, licence disqualification is mandatory.
When should legal advice be obtained after a refusal?
Legal advice can be obtained at any stage before finalisation. Getting legal advice before the court date may help you understand the charge, the minimum disqualification period, and the likely range of penalties. Advice from a traffic lawyer may also assist where there is a possible defence.
Common questions about refusing a breath test in QLD
Can police charge me if I tried to blow but couldn’t give a proper sample?
Yes. If police form the view that the attempt was not genuine or that the person did not provide an adequate breath sample, the conduct may be treated as refusing a breath test.
What happens if I refuse once, then agree later?
An initial refusal may still result in a charge. Later cooperation does not automatically negate an earlier refusal.
Does refusing a breath test show up on my criminal history?
Refusing a breath test is a criminal offence. However, whether a conviction is recorded depends on the circumstances and is determined by the court.
Can I refuse a roadside test but agree to a test at the police station?
Refusing a roadside breath test may still have consequences. Refusal at the police station is treated seriously and commonly forms the basis of the charge.
What if English isn’t my first language and I didn’t understand the request?
Language difficulties may be relevant in some cases. Whether they affect the outcome depends on the evidence and how the request for a breath test was communicated.
Can refusing a breath test affect my insurance or employment?
Yes. Licence disqualification and any recorded conviction may have flow-on effects for insurance and employment.
Is refusing a breath test treated the same as refusing a saliva test?
They are separate offences under the legislation, and both are treated seriously.
Can the charge be downgraded if no alcohol or drugs are proven?
No. A refusal offence arises from the refusal itself and does not depend on proof of alcohol consumption.