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Drivers can be tested for alcohol or drug consumption under a number of circumstances. Refusing a test is an offence. Fortunately, defences are available to many refusal accusations.
Police officers in the ACT can stop any vehicle at any time to administer a screening test to the driver (provided they do not stop a driver for an improper reason, such as the driver’s race). The test is administered using a preliminary breath test device.
A person who refuses a test may have a defence if:
If the officer does not have a testing device available, the officer can direct the driver to remain for up to 30 minutes while the officer waits for a testing device to be made available. The officer can only do that if the officer has reasonable cause to believe the driver has alcohol in his or her body. The driver may have a defence to a refusal charge if the officer directs the person to wait when the officer has no reason to suspect the driver was drinking. The driver may also have a defence if the driver leaves after waiting for 30 minutes.
Police officers in the ACT can request a driver to provide a sample of oral fluids (saliva) to test for the presence of certain drugs. The circumstances of that screening test are the same as the alcohol screening test described above.
If the preliminary breath test shows that the driver has a blood alcohol concentration that is above the legal limit (0.05 for most drivers), the driver can be taken to a police station for a confirming test. That test is administered using a machine that is more sensitive and more accurate than the preliminary testing device.
If the oral fluids test shows the presence of a drug that cannot legally be in a driver’s blood, the police can take another sample of oral fluids that will be submitted to a laboratory to confirm the test result.
Failing to take a requested screening test for alcohol or drugs, or to follow an instruction to wait for a test to be administered, or to take a confirming test, is punishable by a fine and by a licence suspension. A first offence is also punishable by no more than 6 months of imprisonment, while a repeat offender can be sentenced to no more than 12 months of imprisonment.
A driver has a defence to a refusal charge if more than two hours passed between the last time the driver was driving and the time the officer asks the driver to take a test.
A driver also has a defence if the driver attempted to take a test but failed due to a medical reason. Asthma, for instance, might prevent a driver from providing an adequate breath sample.
To determine whether you have a defence to a refusal charge, you should talk to a lawyer.