A regular sight in Queensland – particularly around Christmas, Friday nights and Taylor Swift concerts – is a series of cars with blue and red flashing lights parked on the road accompanied uniformed members of the Queensland Police Service flagging down motorists as they attempt to get home in order to see if anyone is driving under the influence.
Yep – it’s a “random breath test” zone.
Typically the way they’re going to determine if you’ve had a few too many before getting behind the wheel is by taking a breath sample.
So do you have to comply? What happens if you politely decline the invitation to submit to the test in question?
If you want the quick answer, then yes – in all but rare circumstances you have to comply with a legitimate request by the Police to provide a breath sample for analysis when driving.
If you want the comprehensive answer, then read on.
When can Police Require a Breath Sample?
Police can require a person to provide a breath sample at random if you are driving. They do not need to suspect you of anything, nor does an incident need to have occurred in order for the Police to do a breath test.
That said, typically breath tests will be conducted:
- Following a collision;
- After a person is charged with some types of offence;
- As part of a pre-organised random breath testing checkpoint.
How is a Breath Test Conducted?
Let’s take a random breath test (rather than saliva or blood) as our example.
First, the Police are going to flag down your vehicle in order to administer the test. You must stop your vehicle when requested to by Police, unless you have a lawful reason to do otherwise (but let’s assume you don’t).
The Police might or might not ask for your details up front. If asked, you must provide your name, address and driver’s licence.
They may ask you other questions, such as “have you had anything to drink tonight?”. You do not have to answer those additional questions, although most people do. The challenge is, of course, if you say no and are found to be over the legal alcohol limit, then there is a risk that you have just lied to a Police officer which could have other consequences. Whether you answer those questions or not will make no difference to whether the Police proceed with the breath test.
They will then ask you to blow for a time or count, steadily, into a breath analyser device.
The device will then report your Blood Alcohol Content based on its analysis of your breath.
What Happens If You’re Over the Limit?
If the initial breath test finds you are over the legal limit for your licence, then Police will require you to take a further test using a more advanced testing device.
Again, you are required to comply with a request for this further test. The Police are authorised to use such force as is necessary to get you to the further testing location (usually a nearby Police bus, or Police station).
Can you Refuse to Take the Breath Test?
Not usually.
It is an offence to refuse to take a breath test when lawfully requested by Police.
There are only rare circumstances where a Police request to give a breath test is going to be considered “unlawful”.
The penalty for refusal is up to 6 months imprisonment or 40 “penalty units” which, at the time of writing, is $6,452. You can also receive a licence disqualification of 6 months or more.
These penalties are essentially designed to be similar to the penalties for high range drink driving.
Exceptions
The exceptions to the general requires are fairly rare. You will not be guilty of an offence for refusing to take a breath test if:
- Immediately after the request you produce a medical certificate in an approved form from a doctor stating you are incapable of giving a sample or that doing so could adversely affect your health; or
- You later convince a Court that the request was not lawfully made, or that you were incapable of providing the specimen required; or
- there was some other reason of a “substantial character” for the failure to provide the sample other than a desire to avoid providing information as evidence.
These exceptions are uncommon, but not unheard of.
Charged with a DUI? Get Advice!
If you think a breath sample might have been taken unlawfully or you need help with any drink-driving related offence, don’t hesitate to reach out to our experts for help.