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A breath analysis test is often conducted using a portable breath testing device. This device measures the approximate Prescribed Content of Alcohol (PCA) in a participant’s blood. The results of this test are used as evidence for prosecution of a drunk driving traffic offence. This test is administered by a law enforcement officer or an authorised government official. These persons are allowed to conduct random stops in order to conduct breath analysis. A random breath test may commonly be conducted if a driver is found to be driving erratically or has been part of an accident. The test may be conducted on the person who had been driving, sitting in the driver’s seat with the ignition on or actively supervising or instructing the person who was driving.

Whenever a police officer or an authorised person asks for a breath analysis test, it is mandatory to submit to the test. Refusal or failure to do so is considered a traffic offence. The excuse of seeking professional legal advice before submitting to the test is not held valid, and one may be prosecuted for refusal of taking the test on this basis.

Refusing to take a breath analysis test is considered to be a major offence, and prosecution can lead to penalties equivalent to the high range PCA, which is the highest degree of drunk driving.

Penalties if successfully prosecuted

For first time offenders, the penalties are as follows:

  • A fine of up to $3300
  • A jail sentence of up to 18 months
  • Disqualification from driving for at least 1 year and automatic disqualification of 3 years, though there is no limit on the maximum term for disqualification.

For subsequent offences within 5 years, the penalties are as follows:

  • A fine of up to $5500
  • A jail sentence of up to 2 years
  • Disqualification from driving for at least 2 year and automatic disqualification of 5 years, though there is no limit on the maximum term for disqualification.

Possible defence

The penalties associated with drink driving are imposed only after successful prosecution in court. A good traffic lawyer is very helpful in mounting a successful defence. If the charges are successfully defended, the court may dismiss them and the defendant will face no conviction.

If you are charged with refusing to take a breath test, you may have a defence under the following circumstances:

  • If some medical reason prevented you from taking the test. An example is that if you meet with an accident while driving and have to be admitted to the hospital with major injuries – in this instance, submitting to the breath test may not be possible. However, in such cases, the police may seek a blood sample for blood alcohol testing.
  • If you were not driving, about to drive or not instructing or supervising the driver of your vehicle. Mere passengers are not required to be subjected to breath tests. However, you must be able to prove that you were just a passenger.
  • If you are at your home, the police is not authorised to subject you to the breath test.
  • If 2 hours or more have passed since you were driving, then the breath test is not mandatory. If you are able to prove that more than 2 hours had passed since you were last driving, your refusal to take the breath test is not an offence.