What are your rights and obligations regarding random breath testing?
Since 1985 a police officer can stop and request any driver of a motor vehicle to undergo a breath test. You need not have been involved in an accident, or have driven in a manner that indicates that you have consumed alcohol. Anyone driving a vehicle on a public road, or sitting in the driver’s seat or attempting to drive a vehicle may be stopped randomly and be requested to undergo a random breath test.
How will they test your breath?
You will be instructed to blow into a Breathalyser. The Breathalyser device will measure the level of alcohol in your blood and display a result on a digital screen. If the result is positive, a further test will be conducted at the police station (or a mobile station), using a more accurate testing device. The roadside results will not be sufficient to convict you of drink driving - it is only an indication, a breath analysis test is needed. This analysis test must be done within two hours of the time of your arrest.
What information must you provide to the police during an RBT?
The only information you are obligated to provide is your driver’s licence, which contains your name and address. Refusing to provide this information may result in a conviction of disobeying a police officer’s direction. Although you have the right to remain silent, it might count in your favour if you co-operate with the police – especially for sentencing if you are convicted of drink driving.
Can you refuse to undergo the breath test?
The answer to this question is not an easy one. When an RBT is requested you are required to provide a breath sample. The law (and the courts) may treat you in a similar way as if you were caught for high range drink driving if you refuse to provide a sample. Furthermore, if you blow lightly on the device and there is no reading, due to an insufficient sample, you may be deemed to have refused to provide a sample. You may be charged with refusing a breath analysis test. Again you risk the same penalties as high range drink driving. Given that the penalties might be the same, it is better to agree to a breath test.
The simple answer is, in most circumstances, don’t refuse to provide a sample, BUT it is important to know your rights.
You might not be convicted for refusing to provide a sample:
- If the police officer’s request was unlawful, or
- If you can prove that for some genuine reason you could not provide a breath sample.
When will it be an unlawful request, or when can you lawfully refuse to take the test?
The circumstances differ from state to state.
You can refuse a breath test based on medical reasons. If the doctor, however, confirms that the test will not affect your condition, the test may be performed.
A police officer may not conduct a test if you are at home.
In New South Wales a police officer may not request a breath sample if you haven’t driven the vehicle for the last two hours.
So, can you refuse to undergo an RBT?
The answer is – sometimes you can, and sometimes you can’t.
Are you entitled to see the results of your roadside Breath Test?
No, the police are not allowed to reveal the results of a roadside breath test. They are not obligated to show you your results. They must, however, give you a certificate of the breath analysis test, if you fail the second test (performed at the station).
Do you have the right to have a blood test after the breath test?
You may request a blood test after the breath test. It is your right to be informed by the police that you can request that your blood sample be taken after the breath test.
Take note: You still need to undergo the breath analysis test.
When you request a blood test, the sample is divided in three. One is given to you, the driver, one to the analyst, and the third is kept as a control. It is only admissible as evidence if the driver analyses their blood sample. You have the right to have your blood sample analysed by an independent analyst.
A blood sample reading is normally higher than a Breathalyser test. However, if you haven’t consumed alcohol for the hour prior to testing, the blood sample could show a lower reading. This is due to the time lapse between the Breathalyser test and the blood sample being taken.
What happens after the test – can you drive your vehicle?
Whether you can drive from the scene or not, will depend on the test result. Obviously if the result is negative, you are free to drive.
If your reading falls within the Novice, Special or Low Range level, ie between 0.01 – 0.079, your licence will not be suspended.
If your reading is above 0.08 your licence will be suspended pending the Court’s verdict.
If your licence is suspended, you may not drive for the duration of the suspension. Driving under suspension is an offence, which can lead to lengthy disqualification periods.
What if you disagree with the breath test results?
You can plead not guilty and a date for your trial will be set. If you are planning on disputing the test results, you need to get legal advice. You can dispute the results of the breath test if you have reason to believe that:
- The device was faulty, or
- The results are incorrect, or
- The test was conducted incorrectly, or
- Your medical condition was violated, or
- The prescribed time limit to take the test has lapsed.
It is not an easy task to dispute the test results - you need a drink driving lawyer’s advice.
What happens if you are convicted of drunk driving?
In deciding on a penalty, the court will consider various factors:
- How serious was your offence?
- Your past driving history – are you a repeat offender?
- Are there mitigating factors in your favour?
The general punishment for a drunk driving conviction is at least a 3-month licence disqualification and a fine. If you have a bad driving record, or if you are a repeat offender, the court could consider imposing a term of imprisonment.
The state keeps records of people’s traffic history. If a conviction for drunk driving will affect your ability to find employment, or your ability to travel overseas, your lawyer may address the court and request that your conviction should not be recorded in the state’s records.
Is a Breath test result sufficient to exclude your Insurance Provider’s liability?
If you are convicted of exceeding the 0.05 blood alcohol limit, after failing a breath test, your insurance provider cannot escape liability on this result alone. Many policies state that liability will be excluded if the driver of the vehicle was found to be intoxicated during the accident. However, the provider will have to find more evidence, other than the breath test result, to show that you were under the influence of alcohol when driving.
It is clear that you may be stopped and asked to undergo a breath test at any stage of driving on a public road. Be safe – don’t drink and drive.