Refuse to Submit to Breath Test (WA)

In Western Australia, it is an offence under the Road Traffic Act 1974 to refuse to submit to a breath test or blood test when required to do so by the police. A person who refuses to comply with such a test may be fined and disqualified from driving for a period that is determined by reference to the person’s driving record. A person who repeatedly refuses breath or blood testing in WA may be disqualified from driving for life.

When can the police breath-test a person?

Under section 66 of the Road Traffic Act the police can require a person to provide a sample of their breath if they are driving a motor vehicle or in charge of a motor vehicle. The police may breath-test someone if the person:

• Is driving a vehicle;
• May have been the driver of a vehicle that has caused damage or injury;

When it appears from a person’s preliminary breath sample that they have a blood alcohol content of more then the legal limit that applies to them or if the person is unable to provide a breath sample, the police may require the person to accompany them back to the police station to take a sample of blood or urine from them for analysis.

Offence of refuse to submit to breath test

It is an offence under section 67 of the Road Traffic Act to refuse to do any of the following  when required to do so by the police:

• provide a breath sample;
• allow a sample of blood to be taken;
• allow a sample of urine to be taken;
• accompany the police back to the police station

This maximum penalty for this offence depends on the person’s driving record.

Where previous drink driving offence

If the person has previously been found guilty of a drink driving offence with a blood alcohol content of more than 0.08, then a maximum fine of 50 penalty units applies, with a minimum fine of the amount that would be incurred for a high range drink driving offence. The person will also be disqualified from driving for at least as long as they would be for a high range drink driving offence.

First offence of refuse to submit to breath test

For a first offence of refusing to submit to a breath test, a person is liable to a fine of between 18 and 50 penalty units and disqualification from driving for at least 10 months.

Second offence of refuse to submit to breath test

For a second offence, a person is liable to a fine of between 42 and 70 penalty units or to imprisonment for nine months and disqualification from driving for at least 30 months.

Subsequent offence of refuse to submit to breath test

For a person charged with refusing to give a breath sample for a third or subsequent time, the maximum fine that applies is between 42 and 100 penalty units or imprisonment for 18 months and permanent disqualification from driving.

Where accident occurred causing death or bodily harm

Where the police advise a driver that the motor vehicle that they are believed to have been driving was involved in an accident that occasioned the death of, or grievous bodily harm or bodily harm to another person and the driver refuses to provide a breath, blood or urine sample, after having had the consequences of this explained to them, they face a fine of any amount and imprisonment for up to 14 years as well as disqualification from driving for at least two years.

Defences

It is a defence to a charge of failing to provide a breath sample if the accused:

• Could not provide a breath sample because of a medical or physical condition;
• Was not driving or in control of a motor vehicle in the four hours prior to being asked to provide a breath sample.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.