Refusing a Breath Test in Queensland

 

Refusing a breath test in Queensland is a separate criminal offence. Depending on which test police were requiring, it can carry the same penalty and licence disqualification as high range drink driving, and a work licence may not be available.

If police ask you to provide a breath sample in Queensland and you refuse, deliberately fail to provide enough breath, or do not follow the directions needed to complete the test, you can be charged with a separate offence.

That offence can be serious.

In some cases, refusing to provide a specimen can expose you to consequences similar to high range drink driving — including a mandatory period of licence disqualification.

But not every “failure to provide” charge is the same.

Queensland law distinguishes between failing to provide a specimen for an initial breath test and failing to provide a specimen for formal breath analysis, blood testing or another evidential test.

That distinction can make a major difference to the penalty, your licence and whether a work licence may be available.

If you have been charged with failing or refusing to provide a breath specimen, call us on 1300 952 255. We can review exactly what police required, where the testing occurred, what happened during the test and whether there is a defence or licence option available.

 

Is it illegal to refuse a breathalyser in Queensland?

Yes.

Under section 80 of the Transport Operations (Road Use Management) Act 1995, police have broad powers to require drivers and some other people connected with a vehicle to provide specimens for alcohol or drug testing.

If you are lawfully required to provide a specimen and fail to do so, you may commit an offence.

Importantly, you do not necessarily have to say:

“I refuse.”

A failure can occur simply because the specimen you provide is not sufficient to perform the test or because you do not provide it in the manner directed.

For example, you may potentially be charged if you:

• refuse to blow into the device;

• stop blowing before enough breath has been provided;

• deliberately allow air to escape;

• pretend to blow without actually providing an adequate specimen;

• do not follow the officer’s directions;

• refuse to provide a required blood specimen; or

• otherwise prevent the test or analysis from being properly completed.

The legislation specifically provides that a specimen is not treated as having been provided unless it is sufficient for the test or analysis and is provided in a way that allows the purpose of the test to be satisfactorily achieved.

 

There are two very different types of failure-to-provide charge

 

This is one of the most important things to understand.

People often refer generally to “refusing a breathalyser”, but Queensland law can deal with the conduct in two different ways.

1. Failing to provide a specimen for the initial breath test

The first type generally relates to the preliminary breath test performed by police.

This is commonly the handheld roadside breathalyser used during an RBT, although the legal distinction is not simply whether you were standing beside the road.

Under section 80(5A), an offence can occur if you fail to provide the required specimen or fail to provide it in the manner directed.

The maximum penalty is:

40 penalty units, currently $6,908, or 6 months’ imprisonment.

A penalty unit in Queensland is currently $172.70. This amount changes each financial year, so check the current figure if you are reading this later.

This is sometimes referred to as the “roadside failure” offence.

A work licence may potentially be available for this type of offence if all of the other eligibility requirements are met.

2. Failing to provide a specimen for formal analysis

The second and more serious category arises where police lawfully require a specimen for formal analysis.

This may include:

• breath analysis using a breath analysing instrument;

• a specimen of blood for laboratory testing; or

• in appropriate cases, saliva analysis.

Where the failure relates to a motor vehicle, section 80(11) provides that the person is treated as having committed the appropriate offence under section 79(1).

That is significant because section 79(1) is the provision dealing with driving, attempting to drive or being in charge of a vehicle while under the influence of liquor or a drug.

You can read more about the broader offence structure on our drink driving page.

In practical terms, the failure-to-provide charge carries the same punishment and licence disqualification consequences as that offence.

For a first relevant offence involving a motor vehicle, the disqualification period is generally at least 6 months.

The maximum penalty for a first offence under section 79(1) is currently:

28 penalty units, currently $4,835.60, or 9 months’ imprisonment.

Prior traffic history can make the consequences substantially more serious.

 

What is the penalty for refusing a breath test in Queensland?

The penalty depends on which type of failure-to-provide offence you are charged with.

For a preliminary-test failure under section 80(5A), the maximum penalty is:

40 penalty units, currently $6,908, or 6 months’ imprisonment.

For a failure to provide a specimen for formal analysis involving a motor vehicle, the offence is treated under section 80(11) as the appropriate offence against section 79(1).

That can result in:

• a substantial fine;

• mandatory licence disqualification;

• possible imprisonment;

• immediate licence consequences in some cases; and

• potentially more serious consequences if you have relevant prior offences.

The exact outcome will depend on the charge, your traffic and criminal history and the circumstances of the incident.

 

Is refusing a breath test treated like high range drink driving?

For the more serious form of failing to provide a specimen for formal analysis, the answer is broadly yes in terms of punishment.

The law is deliberately structured so that a driver cannot obtain a better outcome simply by refusing the evidential test.

If a person could avoid a serious high range drink driving charge merely by declining to provide the specimen needed to establish their alcohol reading, there would be an obvious incentive to refuse.

Queensland law therefore treats the formal failure to provide very seriously.

That can mean:

• substantial fines;

• possible imprisonment in serious or repeat cases;

• mandatory licence disqualification;

• an immediate inability to continue driving in some circumstances; and

• consequences for employment, work and family responsibilities.

 

Can police make me take a breath test even if I am not driving when they find me?

Yes.

Police do not necessarily have to stop you while you are actually driving.

Subject to the requirements of the legislation, a police officer can require a specimen if the officer finds you or reasonably suspects that, within the preceding three hours, you were:

• driving;

• attempting to put a vehicle in motion; or

• in charge of a vehicle.

The power is therefore much broader than a conventional roadside RBT.

For example, police may potentially require a test after locating someone at home following a reported driving incident.

The precise circumstances still matter. Police must have the statutory power to make the requirement, and time limits apply.

 

How long after driving can police require a breath test?

For the ordinary powers relating to a breath or saliva test, the requirement generally needs to be made as soon as practicable and within three hours of the event giving police the power to require the specimen.

The three-hour rule can become important where police locate a driver sometime after the alleged driving.

Whether the requirement was lawfully made should be checked carefully where there has been a significant delay.

 

Can police require a breath test after a crash?

Yes.

Police have specific powers to require testing where a vehicle has been involved in an incident causing:

• injury;

• death; or

• property damage.

Depending on the circumstances, police may also require a person to attend or be taken to another location so that proper testing or analysis can occur.

 

Can police take me to the station for a breath test?

Yes.

If the necessary equipment is not available where police first deal with you, police may in appropriate circumstances require you to attend a police station, police vehicle, hospital or another authorised place.

If a person does not voluntarily go when lawfully required to do so, police powers can include taking the person there.

This is another reason the phrase “refusing at the police station” can sometimes be misleading.

The real question is:

 

What type of specimen were police requiring at that stage?

Was it merely the initial test, or was it a specimen for formal analysis?

That distinction can determine the charge and its consequences.

 

What if I tried to blow but could not provide enough breath?

Trying is not always enough.

Section 80 provides that a specimen is treated as not having been provided unless it is sufficient for the test or analysis and is provided in the necessary way.

This means a person can potentially be charged even though they put their mouth on the device and appeared to attempt the test.

However, that does not automatically mean the charge will succeed.

There can be a major difference between:

• deliberately frustrating the test; and

• genuinely being physically incapable of providing the required specimen.

The surrounding circumstances need to be examined carefully.

That may include:

• body-worn camera footage;

• what instructions police gave;

• how many attempts were made;

• whether the device registered an error;

• what the person said at the time;

• any existing respiratory or medical condition;

• whether an alternative specimen was offered or requested; and

• the police paperwork recording the failure.

 

What if I have asthma or another medical condition?

A medical condition can be extremely important.

Queensland law recognises circumstances where illness or disability makes a person incapable of providing a breath or saliva specimen, or where providing it could adversely affect the person’s health.

There are provisions dealing with medical certificates and also broader statutory defences where a person can establish that they were genuinely incapable of providing the specimen because of what occurred.

The existence of asthma, COPD, a respiratory condition, panic or another medical issue does not automatically result in the charge being dismissed.

The issue usually becomes whether the condition actually prevented the person from providing the specimen in the circumstances.

Medical evidence may therefore be critical.

Police can also require an alternative type of specimen in appropriate circumstances. For example, if a person cannot provide breath because of a recognised medical issue, police may require blood instead.

 

What defences are available to failing to provide a specimen?

The available defence depends on the exact charge.

Potential issues include whether:

The police requirement was lawful

Police must have legal authority to require the specimen.

This can involve questions about:

• whether police had the required suspicion;

• whether the person fell within the categories covered by section 80;

• the timing of the request;

• whether the correct procedure was followed; and

• the circumstances in which further testing was required.

If the requirement itself was not lawful, that may provide a defence.

You were incapable of providing the specimen

A person may have been physically incapable of providing the specimen because of:

• illness;

• injury;

• respiratory problems;

• the effects of an accident; or

• another genuine physical circumstance.

The evidence needs to establish more than simple reluctance or difficulty.

There was another reason of a substantial character

The legislation also recognises a broader defence where there was another reason of a substantial character for the failure.

The reason cannot simply be:

“I did not want to provide evidence that might be used against me.”

In other words, refusing because you believe your alcohol reading may be high is not a defence.

Whether a particular explanation amounts to a reason of a substantial character depends heavily on the facts.

 

Can I refuse because I want to speak to a lawyer first?

You should obtain legal advice whenever possible, but a requirement to provide a breath or other specimen is not something a person can simply postpone indefinitely while waiting to speak with a lawyer.

If police make a lawful requirement under section 80, refusing to comply because you first want legal advice may expose you to a failure-to-provide charge.

If you are already charged, however, you should get legal advice before deciding how to deal with the charge in court.

 

 

Can I get a work licence after refusing a breathalyser?

A work licence may potentially be available for a preliminary failure-to-provide offence under section 80(5A), provided all of the usual eligibility requirements are met. A work licence is not available where the failure is dealt with under section 80(11) and treated as an offence against section 79(1).

Possibly — but it depends completely on which failure-to-provide offence you have been charged with.

Failure to provide the preliminary breath test

Section 87 expressly allows a person convicted under section 80(5A) to apply for a restricted licence if the other statutory eligibility requirements are satisfied.

You can read the full eligibility requirements on our Queensland work licence page.

A work licence does not allow general driving. It only permits driving for the purposes authorised by the court and subject to the conditions imposed.

Work licence eligibility has strict requirements concerning matters such as:

• the licence you held;

• your driving history;

• previous suspensions and disqualifications;

• previous drink or drug driving offences;

• whether the offence occurred while driving for work; and

• whether losing your licence would deprive you or your family of your means of earning a living.

Failure to provide a specimen for formal analysis

A failure under section 80(11) involving a motor vehicle is treated as an offence against section 79(1).

A work licence is not available for an offence against section 79(1).

This is one of the major practical differences between the two failure-to-provide charges.

If keeping your licence for employment is critical, it is essential to identify the exact section on the charge before assuming a work licence is available.

Will my licence be suspended immediately?

Some failure-to-provide charges can result in immediate licence consequences before the Magistrates Court finally deals with the charge.

Whether that has occurred will depend on the particular offence and what police have issued to you.

For an explanation of how these temporary suspensions work in other serious alcohol-related matters, see our article on immediate licence suspension for drink driving.

Do not assume that because your court date is several weeks away you are free to continue driving.

Check the notice given to you by police and obtain legal advice if you are unsure.

Driving while suspended can result in an additional charge and make the situation substantially worse.

 

What will the Magistrate consider when sentencing me?

The precise sentence depends on the charge and your circumstances.

Relevant matters can include:

• whether the failure was deliberate;

• the circumstances leading to police requiring the test;

• whether there was evidence you had consumed alcohol;

• whether there was a crash;

• your behaviour towards police;

• your traffic history;

• previous drink driving or failure-to-provide offences;

• your criminal history;

• your personal circumstances;

• your employment;

• rehabilitation or alcohol education;

• your plea of guilty; and

• any genuine medical or other explanation.

For a formal failure-to-provide offence, the mandatory disqualification framework can be particularly important.

 

Should I plead guilty if I refused the test?

Not before the charge has been properly reviewed.

A person may clearly remember refusing to blow and assume there is nothing a lawyer can check.

That is not necessarily correct.

We would generally want to examine:

• the exact charge;

• the QP9;

• body-worn camera footage where available;

• the police testing paperwork;

• the timing of events;

• the basis on which police required the specimen;

• whether the correct statutory process was followed;

• any medical issue;

• the type of specimen requested;

• whether it was a preliminary test or formal analysis; and

• your licence and traffic history.

Sometimes the central issue is not whether the person refused.

It is whether the particular offence charged is made out.

If you are unfamiliar with the court process itself, our guide to how drink driving matters are heard in Queensland explains what normally happens when a traffic matter comes before the Magistrates Court.

 

What should I do if I have been charged with refusing a breath test?

We appear in Magistrates Courts across Queensland, including Brisbane, Southport, Ipswich, Beenleigh, Maroochydore, Caboolture and Toowoomba.

First, do not drive unless you are certain you are legally permitted to do so.

Keep every document police gave you.

If there was any medical or physical reason you could not provide the specimen, obtain relevant medical records as soon as possible.

Write down what happened while it is still fresh in your memory, including:

• where you were stopped;

• what police said;

• what you were asked to do;

• how many attempts you made;

• whether you told police you had a medical problem;

• whether police offered another testing method; and

• what happened afterwards.

Then get advice before your court date.

The difference between a section 80(5A) charge and a section 80(11) charge can affect both the penalty and whether you have any prospect of retaining limited driving privileges for work.

Frequently asked questions

Is refusing a breathalyser better than blowing a high reading?

Usually not.

The legislation is specifically designed to prevent a driver from obtaining an advantage by refusing the formal test.

A formal failure to provide can carry the same punishment and licence consequences as an offence under section 79(1).

You can read more about the consequences of a high reading on our high range drink driving page.

Can police charge me if I blew into the breathalyser?

Yes.

If the specimen was not sufficient to allow the test or analysis to be completed, the law may treat the specimen as not having been provided.

Can I be charged if I physically could not blow hard enough?

Potentially, but genuine incapacity can provide a defence.

Medical evidence and the police footage can be particularly important.

Is failing to provide a criminal offence?

Yes.

It is dealt with as an offence in the Magistrates Court and can result in a fine, disqualification and, in serious cases, imprisonment.

Is a work licence available?

Potentially for a section 80(5A) preliminary-test failure if all work licence eligibility requirements are met.

It is not available for a section 80(11) motor-vehicle failure treated as an offence under section 79(1).

Can police require a blood test instead?

Yes, in appropriate circumstances.

The legislation contains powers allowing police to require blood specimens, including where a breath specimen cannot properly be obtained.

How long after driving can police require a breath test?

In the usual case, the requirement must be made as soon as practicable and within three hours of the event that gives police the power to require the specimen.

Can I refuse until I have spoken to a lawyer?

You should obtain legal advice whenever possible, but you generally cannot delay a lawful requirement to provide a specimen while waiting to speak to a lawyer.

 

Get advice about a failure-to-provide charge

Failure-to-provide charges can have serious consequences for your licence, employment and future. The precise charge matters, particularly when considering possible defences and whether a work licence may be available.

If you have been charged with refusing or failing to provide a breath, saliva or blood specimen in Queensland, call Clarity Law on 1300 952 255 for advice before your court date.

 

 

Need more information?

We have a range of articles on drink driving on our blog.  Some of the most recent have included:

• Top 5 Drink Driving Myths
• The Essential Guide to Obtaining a Work Licence
• Drink Driving on a Lime Scooter
• How Drink Driving Matters are Heard in Queensland
• What happens after your drivers licence is disqualified?
• Refusing a Breathalyser Test in Queensland
• Can you commit a drink driving offence in your driveway?
• Immediate suspension for drink driving
• Case Study - High Range Drink Driving and Disqualified Driving
• Three High Range Drink Driving Charges
• Special Hardship Orders v Work Licences
• High Range DUI
• Going through a drink driving charge in Brisbane Magistrate Court
• DUI Charges

This article general information only and not legal advice and is rewritten subject to our disclaimer that can be read by clicking here