Breath Tests in Australia

A Breath test is usually conducted at a roadside checkpoint, where every passing motorist is required to submit to be tested. You may also be asked to submit to a breath test in other situations if a Police officer has reason to believe that you may be driving over the legal limit. Testing will also be done after a road accident which is attended by Police.

Generally, you cannot refuse a Police request for a breath sample. A breath test request can be refused based on medical grounds. However, if a doctor confirms that a breath test will not affect a person’s health, the test may go ahead. Not completing a breath test correctly, by not blowing hard enough or blowing intermittently is also considered a refusal. Refusal can lead to more serious charges.

There are certain situations when a Police Officer can not request you to complete a breath test. These Laws differ from State to State. For example, in New South Wales, a police officer cannot ask you to perform a breath test if you have not driven for the last two hours. You also cannot be asked to complete a breath test if you are at your own home.

It is always good to provide a breath sample, even if you think that the Police officer is not right in requesting it. If you dispute the test in court, your cooperation will help your case. If you refuse a breath test and your refusal is later found to be wrong, you may be charged with the level of a high range drink driving offence.

Generally, when police stop you for a Random Breath Test, the officer will request your driver’s license and ask if you have drunk any alcohol that day. You will then be asked to either speak or blow at a breath screening unit or blow into a breathalyzer. A breath screening unit records alcohol’s presence on the breath with a yes/no type answer. It doesn’t show how much alcohol is actually present. A breathalyzer, on the other hand, will detect the level of alcohol in the breath.

If alcohol is found on your breath, you will then be required to complete a breath test using a breathalyzer to measure the exact amount of alcohol present.

What happens next?

If the Breathalyzer shows that you are under the Australian legal limit of 0.05, then you can continue on your journey. However, if your results show that you are over the limit, you will be arrested (without a warrant). You will then need to complete a breath analysis at either a mobile testing van, a police station, or a hospital. This may involve a second breath test with more advanced and accurate equipment or a blood test.

A Breath Analysis Test must be done within 2 hours of your initial arrest. Police are allowed to use “reasonable” force to take you to the Mobile van, Police Station, or Hospital for your secondary testing.

Police are not allowed to give you the result of a roadside breath test. If you fail the second Breath Analysis test, you will be charged. You will also be given a written statement of the result.  This second test result is the one that will be used to charge you and will be evidence in court. If you have a blood test, a portion of the blood sample will be given to you, and you can independently test it.

The penalties of a failed breath test for drink driving differ from State to State in Australia. They but are generally divided into 3 categories: Low range (0.05%-0.08%), Mid-range (0.08%-0.15%) and High range (over 0.15%). Learner Drivers, P plate (probationary) drivers, some professional drivers, and drivers under a certain age in some states such as the NT must have 0.00% alcohol present.

Penalties generally involve a substantial fine, loss of points on your licence or mandatory licence disqualification, and sometimes imprisonment. Some States, for example, Victoria, also have a mandatory period for the use of a vehicle interlock device once your licence is restored after disqualification.

What are the Factors? 

Various factors will be considered when issuing a penalty for a drink driving offence. Mid and High Range offences will always go to court, where the judge may consider leniency for certain situations. Mid and High Range offences almost always result in your licence’s immediate loss for at least 6 months.

Repeat offenders could lose their licence for several years. However, a first-time low-mid range offence may be lucky to result in a fine and loss of points. Constant repeat offenders may well end up in jail.

There are other repercussions to being charged with a drink driving offence after a failed breath test. These can include loss of employment if you need to drive as part of your job or require a vehicle to get to work. A drink driving charge will also affect your future car insurance premiums. You may have to pay a higher premium or higher excess for 3-5 years after the charge. This depends on the insurer. Some insurers will not cover you for a certain length of time after a charge.

There may also be social and public embarrassment associated with the charge. High-level charges can be published in the media with your name on public record forever. A breath test by the use of a breathalyser is beneficial to avoid all of these penalties.