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There has been quite a bit of media attention around a recent video in which a driver refuses to participate in a roadside breath test and constantly asks the police officer whether he is under arrest or free to go. Whilst this may seem to be a clever way to avoid having to give the breath test, the police officer would have been well within his rights to have detained the driver.

The law under the Transport Operations (Road Use Management) Act states that a police officer may require any person who is driving a motor vehicle to provide a specimen of breath for a breath test. This requirement also extends to anyone a police officer reasonably suspects of having driven or attempted to drive a motor vehicle in the last 3 hours. If you refuse to give a sample, the police officer is within their rights to require you to attend the police station and you may be punished with a period of licence disqualification, a fine of up to in excess of $4000.00 or 6 months imprisonment.

While there are legitimate reasons why a person may be unable to provide a breath sample, primarily these are for health reasons and the production of a medical certificate is required.

Recently Howden Saggers Lawyers represented a client who refused to provide a breath sample and they were fined $650 and had their licence disqualified for 12 months. This disqualification period is well within range for a failure to provide a sample, but in terms of drink driving, it is a period more likely to be seen only in repeat offending or the higher end of drink driving.

Whilst the driver who made the video was allowed to leave without providing a breath sample, he is now facing charges for failing to provide and must appear in court in December.  So if you are out driving and police pull you over for a breath test, keep in mind that if you refuse to provide a sample, you may very well end up being arrested.

In the unfortunate event that you are charged with drink driving, we recommend you come into one of our offices and ask one of our solicitors about your options moving forward.