Preliminary Breath Tests

Preliminary Breath Tests

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Preliminary Breath Tests - Why you must comply and what occurs if you dont.

A persons rights, requirements and obligations are often raised in difficult situations.

This article aims to give you an overview on the particular obligations you should be aware of and always comply with when requested to comply with a breath test by Victoria Police.

Failure to comply with a preliminary breath test (“PBT”) when requested to do so by Victoria Police would, under the current legislation, be worse than blowing a reading of 0.05 or above.

When the police may request a PBT and the possible consequences of refusal are briefly outlined below.

Am I required to provide a PBT?

Yes, you are required to comply with a request for a PBT at any time outlined in section 53 of the Road Safety Act (VIC) 1986 (“the Act”).

An officer of Victoria Police can request a person to undertake a PBT if that person:

  1. was found driving a motor vehicle or in charge of a motor vehicle,
  2. if they were stopped and remain stopped at a preliminary breath testing station,
  3. any person the police officer believes on reasonable grounds has within the last three preceding hours driven or been in charge of a motor vehicle involved in an accident, or
  4. any person who he or she believes on reasonable grounds was, within the last three preceding hours an occupant of a motor vehicle that was involved in an accident if it is not been established to the satisfaction of the police officer which of the occupants was driving or in charge of the motor vehicle when it was involved in the accident.

If any of the circumstances apply above, you are required to provided a PBT.

Regarding point three above, how is ‘in charge’ of a motor vehicle defined?

A person is taken to be in charge of a motor vehicle if:

  1. they are attempting to start or drive the motor vehicle;
  2. there are reasonable grounds for the belief that the person intends to start or drive the motor vehicle;
  3. an accompanying licensed driver such as a supervisor of a driver with a learner’s permit or a commercial instructor while teaching; and
  4. a person holding an ADS permit and is supervising an automated vehicle in automated mode while being the assigned person to do so.

Penalties for not submitting to a PBT

Victorian Legislation sets out the penalties for a person who refuses a request for a PBT.

The relevant section of the Road Safety Act that makes it an offence to refuse a PBT is Section 49(1)(c).

The penalties for breaching the above section are outlined at Sections 49(3) and 50(1B) of the Act set out the penalties for refusal which will include:

(a) in the case of a first offence, a fine of not more than 12 penalty units (1 penalty unit of $159.57 x12 is $1,902.84) and a minimum disqualification from driving for 2 years;

(b) in the case of a second offence, a fine of not more than 120 penalty units (1 penalty unit of $159.57 x120 is $19,028.40) or imprisonment for a term of not more than 12 months, as well as a minimum disqualification from driving for 4 years; and

(c) in the case of any other subsequent offence, a fine of not more than 180 penalty units (1 penalty unit of $159.57 x180 is $28,542.60) or to imprisonment for a term of not more than 18 months, as well as a minimum disqualification from for 4 years.

In addition, a Magistrate will likely record a conviction for the offence. Even if a Magistrate does not record a conviction, any plea or finding of guilt will still result in a criminal record.

A Magistrate hearing a plea of guilty or sentencing a person found guilty of an offence outlined above cannot lower that suspension time as those suspension times are minimum period under the law. However, a Magistrate can increase the statutory suspension period it if it is deemed appropriate in consideration of all of the circumstances.

If you have any questions about the above information or you would like assistance, please contact us on 0401 049 809 or at kirk@olympuslawyers.com.au.

The information on this website is of a general nature only. It is not, nor is it intended to be legal advice. You should consult a lawyer for individual advice about your particular circumstances.

 

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