Drug and Alcohol Testing and Your Rights: What You Need To Know

Breathalysers and random drug tests are common occurrences on Australian roads, with strong drink driving laws encouraging police officers to catch those who are drink driving or drug driving before a problem occurs. But if you are stopped on the road, or elsewhere for that matter, would you know what your rights are and what the rules are in regards to this testing? Many people are unsure, but here we detail the process of drug and alcohol testing, your rights, and what the process of investigation is if you’re over the limit.

Can You Refuse A Breath Test or Drug Test?

In Australia, it is not possible to refuse a breathalyser or a drug test if you are driving a vehicle and requested to do a test by a police officer. If you refuse to take the test, it can be treated as a serious offence, and the consequences can be very severe. It is also seen as an offence if one purposefully completes the test in an unsatisfactory manner, such as not blowing strongly enough so that there is no reading. If this occurs you may be judged as ‘guilty’ and charges will apply.

Refusing to take a breath test can result in heavy fines of up to $4000 and a length of time in prison, which is a very serious punishment, even compared to some drink driving sentences. Police are also able to test passengers who they reasonably believe could have been a driver in the car, putting a stop to the idea that you can swap with a passenger in the car if you get caught.

A Police Officer Can’t Request a Test When…

A police officer is unable to request you to provide a test sample under a few different conditions. These conditions vary between states, but in New South Wales and Queensland a police officer is unable to request you to perform a test if it has been 2 hours or more since you were the driver or the occupant of a vehicle. In Victoria, this time period is 3 hours. Additionally, a police officer can’t request a test to be performed if a person is at home.

What If the Test Is Negative?

Even if a random drug or alcohol test is negative, a police officer can still request further tests if the policeman believes that the person is under the influence of drugs or alcohol, or they are a learner or provisional driver who is required to have a zero blood alcohol limit.

What Happens if The Test Is Positive?

If the result is positive, action will be taken by the police officers immediately. You may be arrested and taken immediately to the police station for further testing. In some cases, your license or vehicle could be confiscated, and for more severe offences related to drink and drug driving, you could face court. Most offences involve penalties including demerit points, heavy fines, loss of license and even prison terms. Negligent driving that results in injury or death is always dealt with in court.

Defending a charge of drink driving or drug driving, or refusing to take a test, can be done on the basis of disputing the facts that are being alleged, or claiming that it was more than 2 (or 3, depending on your state) hours since you were in a car. Most challenges are based on incorrect procedural matters, but the challenges that you can make are limited.

If you are charged with a drink or drug driving offence, the best thing to do is seek professional legal advice as soon as possible. In refuting drug and drink driving cases, expert testimony is often required, and it’s essential to have experienced legal counsel on your side. Any experienced drug driving or drink driving lawyer can help to advise you how to plead, and what actions to take in order to get the best result and minimise the impact on your life.

Due to the challenge faced by refuting drink or drug driving cases, it’s always best to be careful and never drive after drinking or taking drugs, for your safety and the safety of those around you. If you find yourself facing charges, seek the best legal help available to reduce the impact on your life, according to your individual circumstances.

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