To Blow Or Not To Blow

Mar 25, 2019

Amalia Vicze & Michael Sunderland

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The chance of being intercepted for a random breath or saliva test is now greater than ever. In Victoria alone, the State Government recently undertook the biggest road traffic operation in its history to ensure drug and alcohol affected drivers are taken off the road during the festive holiday period.

When you consider the intense media coverage that drink and drug driving is receiving at present, it is quite alarming to realise that a great deal of motorists do not know what their rights and obligations are when it comes to an encounter with a booze bus or a random police intercept.

We find that many convicted drink drivers find themselves in far worse situations than necessary because they are simply misinformed. It is a mistake to believe that if you refuse to comply with a police request for a breath test that the situation will actually turn out better for you.

We found that many of our clients thought that if they refuse to comply with a breath test, then the police will be unable to proceed with charges against them. In reality, the situation is often the complete opposite and a conviction for such a charge usually attracts a much higher penalty.

In Victoria, the penalty for a first offence of exceeding 0.05 is calculated according to Schedule 1 of the Road Safety Act 1986. If the driver complies with the breath test, and is subsequently convicted of a drink driving offence, their time off the road is calculated according to the level of their reading.

For example, a blood alcohol reading of 0.05 to 0.068 (inclusive attracts a 3 month cancellation. A reading of 0.07 (inclusive) to 0.099 (inclusive) attracts the minimum licence cancellation of 6 months. If the reading is 0.10 then the minimum cancellation is 10 months. Similarly, a 0.11 reading attracts an 11 month period and a 0.12 result warrants a 12 months licence cancellation. The period of cancellation operates on this sliding scale up to and including a blood alcohol reading of 0.24 (which attracts a minimum cancellation of 24 months). 2

On the other hand, the penalty for a first offence of refusing a breath test has a statutory minimum licence cancellation period of 24 months. This non-compliance penalty is to combat those who try and frustrate the process of administering breath tests.

The statistics show that the vast majority of drink drivers, particularly first time offenders, register blood alcohol readings well below that of 0.24.

For example, an individual who refuses to comply with a request because they think they may be over the limit will, upon conviction or finding of guilt, have their licence disqualified for a minimum period of 24 months. However, if they chose to comply with the breathalyser request and their reading was, say, 0.098 they would be off the road for a minimum period of only 6 months providing that it was their first offence within a 10 year period.

When faced with the choice of ‘to blow or not to blow’, it is always more advantageous to comply with the police breathalyser request and avoid the lengthy consequences. With this knowledge in mind, a little awareness can save valuable months off the road.

William Archer is a Melbourne-based traffic law firm that offers legal solutions for traffic, drink driving, driving whilst disqualified offences to clients throughout Victoria.