Before random breath testing was introduced, a driver was only required to go through a breath test under certain circumstances.
During that time, a police officer would request a driver to take a test if they believed that the driver had committed an offence, had consumed alcohol according to their manner of driving or had been in an accident.
The police still maintain the mandate of having a driver go through a breath test under these circumstances. They can now, however, also conduct breath tests on drivers who have been in accidents regardless of who is liable for the accident.
Background of the RBT
Random breath testing was introduced in 1985.
According to this policy, any one driving a vehicle on a public road or sitting in the driver’s seat or attempting to drive a vehicle can be asked to go through a random breath test.
A police officer can signal or request a driver of any auto mobile to stop their vehicle in order to undergo a breath test.
How Does Random Breath Testing Work?
The device that is used to conduct a breath test is known as a breathalyser.
The driver of an automobile is instructed to blow into the breathalyser.
A digital screen on the device will indicate if the breath of the driver contains a level of alcohol that is above the limit prescribed for driving.
You will not be convicted for drink driving on the basis of failing this road-side test. A further test will be conducted at the police station or mobile station using another, more accurate breath testing device.
Under this law, motorists may be stopped randomly for a breath test.
If the test results are positive, a breath analysis will be performed.
A random breath test can be done by highway patrol police officers. One or two highway patrol cars will be parked on a minor or major road.
Since the mobile device used for a random breathe test is only used to give an indication, the motorist will be taken to the nearest police station for a breath analysis.
If you are arrested after failing a roadside test, the police should perform a breath analysis test within two hours from the time of your arrest.
What Information Are You Required To Submit During an RBT?
If the police stop your vehicle because they want to test your breath, the only information required is your driver’s licence which contains your full name and address.
If you do not give the requested information, you may be charged with disobeying or contravening a police officer’s direction.
It is worth noting that, though you may not be required to offer the police much information, your cooperation will be considered during sentencing if you are found guilty of drink driving.
Should You Provide a Breath Sample?
One question most people ask themselves is, can you refuse a breath test?
The answer to this question is much more complicated than it appears.
There are certain grounds under which you may be deemed to have refused to take a breath sample.
Although refusing to take a breath test has its consequences, there are certain grounds under which you can refuse to take a random breath test.
When an RBT is being performed, you are required to provide a sample of your breath. Failure to provide a sample of your breath is normally treated by law and the courts the same way someone caught for high range drink driving.
Furthermore, if a driver provides an insufficient sample like blowing lightly on the device so that there is no reading, they will be considered to have refused to provide a breath test and will be charged with refuse breath analysis which carries the same penalties as high range drink driving.
It is better to agree to a breath test and get convicted of drink driving than to refuse to take a test and get charged with refuse breath analysis. For instance, in NSW the penalties for refusing a breath analysis are the same as being charged with high range drink driving.
However, you may escape conviction for failing to provide a sample of your breath if:
- You are able to prove that the police officer(s) made an unlawful request;
- You are able to prove that for some unavoidable circumstances or some genuine reason, you could not provide a sample of your breath.
When Can’t Police Ask You For a Breath Test?
It is important to know your rights during an RBT.
There are cases when police are not allowed to ask drivers to have a breath test.
The circumstances under which a police is not allowed to request for a breath test differ depending on the states. For New South Wales, a police officer cannot ask a person to perform a breath test if they have not driven a vehicle for the last two hours.
A breath test request can also be denied based on medical grounds. However, if a doctor confirms that a breath test will not affect a person’s condition, the test may be conducted.
A police officer is also not required to conduct a breath test if an individual is at home.
Therefore, the answer to the commonly asked question, can you refuse a breath test? Is both Yes and No.
Can You Have a Blood Test After a Breath Test?
A person who undergoes a breath test may afterwards request for a blood sample to be taken.
One of your rights during an RBT is to be informed by the police that you can request for your blood sample to be taken after a breath test. However, a driver should also go through a breath analysis test.
When a blood test is taken, it is divided into 3 parts, one is given to the driver, the other to the analyst and one is kept as a control.
A driver has the right of having their blood sample independently analysed.
Unless a driver analyses their blood sample, it is not admissible evidence.
A blood sample is not better than a breathalyser because the readings are normally higher and may be used as proof if applicable. However, if a driver has not consumed alcohol within the last hour prior to testing, the blood sample could potentially show a lower reading due to the elapsed time between the breathalyser analysis and blood sample test.
Should the Police Show Me Breath Test Results?
The police have no obligation to reveal the results of your breath test.
In fact, police officers are prohibited from revealing the results of a roadside breath test. However, the police officer should issue you a breath analysis certificate if you fail the second test.
Can You Drive After a Random Breath Test?
If your breath test turns out negative, you are allowed to drive. However, if your results are positive, based on the alcohol reading, you will in some cases receive a license suspension that will prevent you from driving for a certain period of time.
Your license will not be suspended if your reading falls within the Novice, Special or Low Range. That is a reading between 0.01-0.079.
If you are suspended by the Police and then drive you are committing an offence of driving whilst suspended, which carries lengthy disqualification periods.
If your alcohol reading is above 0.08 your licence will be suspended pending the Court outcome.
Can You Dispute the Results of a Random Breath Test?
You can disagree with the findings of the breath test and plead not guilty.
When you dispute the results of your breath test, a date for your trial will be determined.
It is advisable to seek a drink driving lawyer’s advice on the circumstances under which you can dispute the results of a breath test.
The basic grounds for disputing the results of a breath test are:
- If you have reason to believe that the device used for the test was faulty
- If you have reason to believe that the results of the test are incorrect
- If you have reason to believe that the test was conducted incorrectly- medical grounds were violated or the prescribed period for conducting a test had already lapsed
What Happens When You are Convicted of Drunk Driving?
If you fail a breath test and get convicted for drunk driving, you will be penalised depending on several factors.
These factors include; how serious your offense is, mitigating factors that may reduce your penalty and your past driving history.
The common punishment for a drunk driving offence is at least a 3 month license disqualification and a fine. For serious offences, like where someone has a bad driving record or is a repeat offender, the court could consider handing down a jail sentence.
Since the state may maintain records of a person’s traffic history, a lawyer may make submissions to prevent a conviction from being recorded, for instance, if a conviction for drunk driving will affect a person’s ability to secure employment or travel overseas.
Can Your Breath Test Results Affect Your Insurance Provider’s Liability?
Many insurance policies that cater for damage to vehicles have a provision that excludes the insurer’s liability if the driver of a vehicle is found to have been intoxicated during an accident.
If you fail a breath test and get convicted for surpassing the 0.05 blood alcohol limit, your insurance provider cannot use this alone to avoid indemnifying you. However, if your insurance provider has some other proof, apart from your breath test results, to show you were under alcohol influence when driving, this is enough to exclude their liability.