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Did you know that refusing a breath test in Queensland is an offence? What are the repercussions of saying 'no' to a breathalyser test, and what does it mean for individuals facing this situation?

Understanding Breath Tests

Breath tests, administered primarily by police officers, are used to determine an individual's blood alcohol levels using a breathalyser tool. In addition to breath tests, you might encounter 'saliva tests' designed to detect illegal drugs in a driver's system.

A police officer can stop a driver at any time to conduct a breath test or saliva test, but these tests are routinely conducted after an accident and at roadside testing stations.

When Can You Be Required to Complete a Breath Test?

A police officer can require a person to undergo a breath test, or a saliva test, or both, when the officer believes that in the past three hours the person was:

  • Driving or attempting to drive a motor vehicle, tram, or train on a road or elsewhere;

  • In charge of a motor vehicle, tram, or train on a road or elsewhere;

  • Otherwise operating, or interfering with the operation of, a motor vehicle dangerously on a road or elsewhere; or

  • Driving or attempting to drive a boat.

The Legalities

The act of refusing a breath or saliva test is a legal offence under the Transport Operations (Road Use Management) Act 1995 – Section 80. “Failing to provide the required specimen, or doing so improperly, constitutes an offence against the Act.”

This includes failing to provide a specimen in the way directed by an officer, such as when a person does not properly blow into the breath-test device or stops blowing before instructed.

Further Testing

The police have the right to use as much force as necessary to take a person to a police station, police vehicle, hospital, or other place for testing using an analysing instrument if:

  • A breath test shows a person is over the general alcohol limit;

  • The person refuses to undergo a breath test, and the officer suspects the person is over the general alcohol limit;

  • A saliva test shows the presence of a relevant drug;

  • The person fails to provide a specimen of breath or saliva, or does not provide a specimen properly, or refuses to wait for a test to be done; or

  • A person who has been arrested for a traffic offence, or who is in hospital for treatment after a traffic incident, may be required to also provide a specimen of blood or urine for analysis. If the person refuses to comply, they commit an offence.

The Penalties

Refusing a breathalyser test carries severe consequences, including a maximum penalty of 6 months imprisonment and 40 penalty units (equivalent to $5,500 in fines in Queensland).

Notably, this penalty exceeds that of a first-time drink driving charge, which entails a maximum penalty of 3 months imprisonment and 14 penalty units (around $2,000 in fines).

The Defences

There can be defences, such as providing evidence from a doctor about health conditions or demonstrating that the request for a specimen was not lawfully made. For advice or representation in any legal matter, please contact legal professionals.

Contact Creevey Horrell Criminal Lawyers

Based in Brisbane, Roma, Toowoomba, and Townsville.

Visit to contact us today.

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