Refusing Breath / Saliva Test in QLD

The Offence

Failing or refusing Breath / Saliva test in QLD is a serious offence and usually ends up causing you far worse consequences than if you just gave the sample. Although often people think that avoiding being caught is going to make it easier, this is not the case, as most of the time you may end up with less of a licence disqualification if you completed the test and were over the limit.

The offence of “failing” to provide a sample, although referred to similarly with “refusal”, is different in the sense that you can “fail” if providing an insufficient sample, by stopping whilst breathing into the machine, or sucking in air instead of blowing out. 

A police officer may only make this request if the officer reasonably suspects that the person either drove a motor vehicle, attempted to drive it, or was in charge of the vehicle up to 3 hours prior (to be in charge the person need only be in a position to be able to operate the vehicle without first taking control of the vehicle from someone else eg the only person sitting in the car, with the keys).

The police may also require someone to provide a specimen of breath, saliva, or blood at the scene of a traffic accident that caused injury, death, or damage to property.

Furthermore, in the event you “refuse” a breath test, the Police then have the right to subsequently detain you for the purpose of making a requirement that you provide a specimen of blood for a laboratory test.

The consequences of failing to comply with this subsequent requirement is spelt out in s. 80(11) of the Transport Operations (Road Use Management) Act 1995 and can be placed as a second charge on top of your initial failure or refusal to provide a breath test.

In most cases, you will likely suffer heavier penalties by failing or refusing a breath or saliva test compared to having taken the test and coming up positive.

The Penalty

If found guilty of failing / refusing to provide a specimen of breath or saliva, the penalty imposed is as if the offence was a high range drink driving (0.150), meaning a minimum licence disqualification of 6-months.

You may also be fined up to $5,338 or sentenced to a maximum term of imprisonment up to 6 months – the same penalties as if you were charged with the offence of driving under the influence of drugs.

Interestingly, if you are charged with the offence of refusing or failing an initial test, under s.80(5A), you can be immediately suspended from driving for 24 hours, but you will be able to drive until the suspension is imposed in court. You will be eligible to apply for a work licence if found guilty of this offence (provided other eligibilities are met).

Contrastingly, a person charged under s. 80(11) with failing to provide a specimen of breath or saliva for analysis or a specimen of blood for a laboratory test faces an immediate suspension that will remain in place until the charge is finalised by a court, and will not be eligible for a work licence.

Can I Defend the Charge?

There are three main defences to a charge of refusing or failing to provide a sample of breath or saliva, that may be available to you depending on the facts of your case, including:

  • That you suffer from a medical condition that made it difficult and/or compromised to undertake the test – this must be supported by some evidence of incapacitation or risk of medical difficulty if proceeding
  • That the request by the officer to provide the sample was not made lawfully or validly; or
  • There was some other reason of a substantial nature why you could not provide the sample, including for example that you urgently had to get to someone in need and were concerned for their wellbeing, or by leaving with the police officer you believed you would have compromised the safety of your child who was with you or another person’s safety.

Whether you have a defence to this charge is highly complex, and the penalties for being found guilty are severe and could affect your future. It is important you speak with an expert traffic lawyer in this field to give you accurate advice.