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Failure to Provide – DUI Breath Test Avoidance

What Is Failure to Provide?

It is an offence when a person does not comply with a police officer’s request for a DUI (drinking under the influence) breath test or a saliva test (used to check if the driver is currently under the influence of drugs).  In Queensland, whenever a police officer asks you to stop your vehicle and perform the test, you are obligated to do so. The officer has the right to execute random breath tests with or without suspicion.


Breath or Saliva Testing Process

The most common practice used by the authorities to perform a breath or saliva test is through random checkpoints. Police call this operation an RBT/RDT (Random Breath or Random Drug Test) and may conduct it on any public road at any given time.

During an RBT/RDT, a police officer will ask the driver to stop the vehicle. The officer will then ask the driver their name, address, and license (although they may skip this step). Afterwards, the driver will be required to blow into the breathalyser. If the authorities are testing for drugs, the police officer will require the driver to place a drug testing stick on their tongue instead.

The police officer may also ask other passengers to take the test if they suspect that one of the passengers is under the influence of alcohol or drugs and has been driving within the past three hours.

Breath Test Result

If the result shows the driver has exceeded the legal limit – 0.05 percent – the driver will be required to take another test. The second test will be conducted in either a police station (one that is close by) or at a police van using a more accurate machine. In the case where the driver still fails the test, they would be charged with drink driving, and if the driver passes the test, they can freely continue on their way.  

Drug Test Result

Similarly to the breath test, if the test result is positive, the driver would need to take another test in a police station or van. The driver would then provide a specimen of saliva to the authorities, and a restriction from driving for 24 hours is put in place. That sample gets delivered to a laboratory for a more accurate result, and if the laboratory confirms that the test is positive, the driver will be contacted and charged with driving with the presence of an illegal drug.


Can the Driver Refuse?

No, unless the driver is physically unable to do so. Refusing to take either of the tests is considered a serious offence even if the person is free from intoxication. If a person insists not to cooperate, the offender will be charged with failure to provide a breath or saliva specimen. This offence has a more severe penalty than someone who failed yet duly cooperated in taking the test in some instances.

The Penalty of Refusal

Anyone who is convicted of an offence of Fail to Provide will be penalised with the same punishment as a person who failed the test but with an alcohol blood concentration level of 0.15 percent. This penalty results in a licence disqualification of six months or more and a fine of $4000 along with the possibility of a six months imprisonment. There is no work licence available.


What are the Possible Defences?

The strongest defence likely to be successful is only when a person is physically incapable of providing a specimen. That means that the individual is disabled or that by doing so they will endanger their health. A doctor is required to certify its legitimacy. There may be some time constraints so you should contact a lawyer immediately.


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