The Law Handbook 2024

Chapter 6.8: Driving offences 653 4 Refusing breath or blood tests There are four separate offences that involve refusal to undergo a breath or blood test. These offences are: 1 refusal to undergo a preliminary breath test as required (s 49(1)(c) Road Safety Act); 2 refusal or failure to stop a motor vehicle and remain stopped as required at a preliminary breath test station (s 49(1)(d)); 3 refusal to undergo an additional breathalyser test if the preliminary test was positive for alcohol or if the preliminary test was refused (s 49(1)(e)); and 4 failure to undergo a blood sample upon request in hospital after a motor vehicle accident (s 56). If a person is convicted of any of the above four offences, they must have their licence disqualified for a minimum period (see sch 1b Road Safety Act). They may also have to pay a fine and, in the case of a subsequent offence, be imprisoned (s 49(3)). 5 Failure to have zero blood-alcohol content Certain drivers must have zero BAC at all times while driving (s 52 Road Safety Act). These drivers are: • probationary licence holders; • unlicensed drivers; • drivers of large vehicles; • learner permit holders; • drivers subject to alcohol-interlock conditions (i.e. drivers who are only licenced to drive cars fitted with a device that only allows the car to start when a zero BAC sample is provided); • holders of a full licence to drive a taxi; • commercial driving instructors; • full licence holders for the first three years after court-ordered licence restoration after drink- driving convictions; and • motorcyclists for the first 12 months of holding a licence, irrespective of what other licences are held. Exceptions to this are learners who hold full licences for other vehicles, unlicensed drivers who have simply failed to renew their licences, and drivers who hold full interstate licences. If a driver is convicted for failing to have zero BAC, their licence is disqualified for a minimum period of three months for a first offence and 12 months for subsequent offences (s 50(1)(a)). 6 Accompanying driver offence Licence holders who accompany learner drivers as non-professional driving instructors must have a BAC of less than .05. They must also adhere to their other obligations as licence holders. However, accompanying driver offences attract a fine and do not require auto­ matic licence disqualification (see definition of ‘accompanying driver offence’ in s 3(1) Road Safety Act); see also ss 48(2), 49(3AA), 50(6)). 7 Combined drink-driving and drug-driving offence This offence applies to drivers who have a higher BAC than permitted for their licence status, and who also have illicit drugs in their blood or fluid (when tested) (s 49(1)(bc) Road Safety Act). Penalties involve fines and/or imprisonment as for other drink-driving offences. There is also a minimum licence disqualification period. The time period varies and depends on the BAC and whether it is a first or subsequent offence. If the BAC is above .05 but below .07, the minimum licence disqualification period is 12 months for a first offence. For subsequent offences, this licence disqualification period increases to a minimum of 24 months or five years, depending on the BAC reading (see sch 1AB). Penalties and other consequences for drink-driving offences Drivers who commit drink-driving offences may face the following penalties: 1 minimum licence disqualification and fines and/or imprisonment; 2 immediate licence suspension; 3 seizure of their motor vehicle – this applies to first offenders with a BAC of 0.1 or over, and to more serious drink-driving offences; 4 completion of a behavioural change program; and 5 installation of an alcohol-interlock device when the licence is restored. The penalties for drink-driving vary according to the following factors: 1 Date of the offence If the offence occurred before 30 April 2018 , a drink-driver with a BAC between .05–.07 will