Random breath tests: A Guide to Your Rights

random breath test drink driving dui brisbane queenslandEvery day, more and more drivers on Queensland roads are being pulled over for a random breath test to check if the driver is committing a drink driving offence.

The likelihood of you being pulled over for a random breath test is therefore much higher today than ever before.

But do you know what your rights are if you are pulled over and asked to provide a sample of your breath?

We have discovered from speaking with our clients that there is a lot of confusion about what rights drivers have when dealing with the police, including when pulled over for random breath tests.

 We have therefore prepared this basic guide for our clients and for all other members of the public. We hope that this guide will answer many of your questions and that you will feel more confident the next time you are pulled over.

 
1.       Do I need to stop my vehicle at a breath test queue?
 
Yes. The police can require a person to stop a vehicle for a ‘prescribed purpose’ which includes conducting a breath test. If you fail to stop your vehicle as required, you can be fined up to $6,000 for a private vehicle and up to $12,000 for another vehicle.
 
There is however a ‘reasonable excuse’ available in certain circumstances. An example of this excuse is if you reasonably believe that immediately complying with the request would endanger you or someone else but you nevertheless comply with the request at the first reasonable opportunity.
 
2.       What information must I provide to the police?
 
Assuming that the police have stopped you because they only want to carry out a breath test, then the only information you must provide is your name and address. In certain circumstances, you may also need to provide your age if that is relevant.
 
If you fail to provide the requested information to the police, you can be charged with contravening a direction or requirement of a police officer and fined up to $4,000.
 
Although you are not required to provide much information to the police, this does not mean that you should not be cooperative. If you plead guilty to an offence of drink driving, your cooperation with the police will be taken into account when you are being sentenced. For this reason, if you know that you will be pleading guilty to a drink driving offence, then your cooperation may be an advantage.
 
3.       Do I need to show the police my licence?
 
Yes. A police officer can require you to provide proof of your name, address and/or date of birth if he or she reasonably expects you to have such evidence, most commonly in the form of a driver’s licence.
 
If you fail to produce your licence when requested, you can be charged with contravening a direction or requirement of a police officer and fined up to $4,000.
 
However if you are the holder of a Queensland Open driver’s licence but you are unable to produce your licence when requested, you can comply with the request by producing your licence to the officer in charge of a nominated police station within 48 hours (unless you were in control of a heavy vehicle at the time).
 
4.       Do I need to provide a sample of breath?
 
Yes. If you do not provide the sample of breath when required, you can be charged with failing to provide a breath sample which is treated by the courts and the legislation as if you were caught driving with an alcohol reading of more than 0.15%. This means that you will face at a minimum a substantial fine and a licence disqualification of at least six (6) months.
 
However you will not be guilty of failing to provide a sample if:
 
a.      You can convince the court that the request to provide a sample was not lawfully made; or
b.      Because of the circumstances or some other genuine reason, you were unable to provide the sample when requested.
 
It is no defence if you simply refused to comply to avoid incriminating yourself.
 
5.       Do the police need to show me the results?
 
If a road-side breath test indicates that you are over the applicable legal limit, then you will be taken to a different location to perform another breath test on a more specialised breath analysis instrument. This second test usually takes place in a nearby ‘booze bus’ or at a police station.
 
The police are not required to inform you of the results from the road-side breath test and in fact are not allowed to tell you. However if the second breath-test returns a positive result, the officer must provide you with a breath analysis certificate confirming the results.
 
6.       Can I drive after the breath test?
 
If the breath test was negative, then you will be allowed to drive again straight after the test is performed (assuming that your licence is not suspended or disqualified for any other reason). However if your reading was positive, your licence will be suspended for a prescribed period of time, depending on how high the alcohol reading was.
 
If your reading was considered to be in the lower range (generally between 0.05% and 0.10%) then your licence will be immediately suspended for 24 hours. If you are caught driving within this 24 hour period, you face a fine of up to $1,400 and a licence disqualification of six (6) months.
 
If your reading was considered to be in the higher range (generally above 0.10%) then your licence will be immediately suspended until your matter is finalised. This is generally when you plead guilty and you are subsequently convicted and penalised in court. If you are caught driving within this suspension period, you face a fine and a licence disqualification of between two (2) and five (5) years.
 
7.       Can I dispute the results?
 
Yes. If you disagree with the results then you can plead not guilty in court and a trial date will be set down. There are a number of grounds on which you can dispute the results at a trial and you should seek legal advice first.
 
You should be aware that if you are found guilty of the offence at a trial, then you will generally be punished more severely than if you had pleaded guilty at an early opportunity. Therefore you should only take a matter to trial if you are confident that you have a chance of winning and this is another reason why it is important to seek legal advice.
 
8.       What will happen if I am convicted of drink driving?
 
Your penalty will depend on a number of factors, including the seriousness of the offence, your previous driving history and any mitigating factors that can be relied upon to reduce your penalty.
 
For drink driving offences, the most common punishment is a fine and a licence disqualification of at least one (1) month. However for serious offences and/or where a person has a poor driving history, jail is a very real potential, particularly for repeat offenders.
 
It is common for a conviction to also be recorded on your traffic history. In certain circumstances, submissions can be made to the court that a conviction should not be recorded, for example if a drink driving conviction will affect your ability to travel overseas or to gain employment.
 
9.       What is a work licence?
 
Many members of the public rely on their licences to earn an income, such as taxi drivers, truck drivers and so on. Other people simply need their licence to be able to get to and from their workplace.
 
A work licence allows a person who has been convicted of drink driving to continue driving for work purposes only. This means that even though a person has been disqualified from driving, they are allowed to continue earning an income. These licences are therefore extremely valuable to many people who would otherwise have lost their jobs and their sources of income.
 
The application for a work licence can be complex and strict timeframes must be observed. If you try to make the application yourself and you are unsuccessful, you do not get a second chance and therefore it is strongly recommend that you let an experienced lawyer handle the application on your behalf.
 
10.   Where can I get more information?
 
There are a number of resources available on the internet which provide some further guidance. Some of these include the following:
 
·         Legal Aid Queensland has quite a lot of information about driving offences generally:http://www.legalaid.qld.gov.au/legalinformation/carsanddriving/Pages/Drinkdrivingoffences.aspx
 
·         The Queensland Police also provide some basic information:
http://www.police.qld.gov.au/programs/roadSafety/drinkDriving.htm
 
However the best way to get information is to simply speak with a lawyer who is an expert in traffic law. The team at Harper Finch Lawyers specialise in all type of traffic offences include drink driving so contact us now to find out how we can help.

 

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2 thoughts on “Random breath tests: A Guide to Your Rights”

  1. Can police ask your passenger for a breath test. I was stopped for speeding and they gave me a breath test. I came back negative. The other officer walked around to my passenger and ask her for a breath test. Is this legal?

    1. Hi Chrissy,

      It’s not unusual for the police to breath test passengers if the driver is a Learner however it would be unusual for a passenger to be tested if the driver was an Open or Provisional licence holder.

      Regards,

      David Abrey.

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