Can you refuse a breath test in Queensland?

When police can require a sample

Police can require a breath specimen from a driver at random. They do not need to suspect you of anything, and no incident needs to have occurred.

In practice, requirements usually arise in three situations.

• At a pre-arranged random breath testing site.
• Following a traffic crash.
• After a person is charged with certain offences.

The power extends to saliva testing for relevant drugs, and in defined circumstances to blood specimens, including where a driver is taken to hospital.

How a roadside test runs

Police signal you to stop. You must stop when required to do so.

You may be asked for your name, address and driver licence. You must provide those.

You may also be asked other questions, most often whether you have had anything to drink. You are not required to answer those, and most people do anyway. Consider that carefully. If you say no and then blow over, you have added a false statement to a police officer to your problems, and it will appear in the fact sheet. Declining to answer changes nothing about whether the test proceeds.

You are then asked to blow steadily into a roadside device for a set period. The device gives an indicative reading of your blood alcohol concentration.

If the roadside test is positive

A positive roadside reading is not the evidence used against you. You will be required to provide a further specimen on an approved analysing instrument, usually at a police station or a booze bus.

You must comply with that requirement as well. Police are authorised to use reasonably necessary force to get you to the place where the further test is conducted.

The reading from the approved instrument is the reading that determines the charge and the disqualification period. See our guides to low range, mid range and high range drink driving.

The penalty for refusing

The penalties for failing to provide a specimen are deliberately set at a level comparable to high range drink driving. There is no advantage in refusing.

• A maximum of 40 penalty units or 6 months imprisonment.
• A licence disqualification of at least 6 months, and often considerably longer.
• A conviction recorded for a serious traffic offence, which carries through to any later matter.

Penalty unit values are indexed on 1 July each year, so multiply the current value rather than relying on a dollar figure published in an older article.

The exceptions

They are narrow, and they are not unheard of. You will not be guilty of failing to provide a specimen if:

1. immediately after the requirement is made, you produce a medical certificate in the approved form from a doctor stating that you are incapable of providing the specimen, or that providing it could adversely affect your health;
2. you later satisfy a court that the requirement was not lawfully made, or that you were in fact incapable of providing the specimen required; or
3. there was some other reason of a substantial character for the failure, other than a desire to avoid providing evidence.

The second of those is where most genuine arguments live. Whether the requirement was lawfully made depends on the officer following the procedure the Act sets out, and that is a question of evidence, not assertion.

Medical incapacity arguments are real but need to be supported. Respiratory conditions and injuries sustained in a crash are the common examples.

If you have been charged

Refusal charges are frequently defensible on procedure, and they are frequently negotiable down where the circumstances explain the failure. Both require the material to be obtained early.

Get the body worn camera footage, the instrument records and the officer’s notes before the first mention. See our page on drink driving charges or work licence applications if your livelihood depends on driving.