Refusing a Roadside Drug Test in Victoria
Refusing a roadside drug test in Victoria is a serious offence. Police can require drivers to undergo drug testing, and refusing to comply with a lawful request can result in significant penalties, including fines, licence cancellation and disqualification.
Importantly, a person can be charged with refusing a drug test even if the influence of drugs cannot be proven. The offence is based on failing or refusing to comply with a lawful testing requirement, not whether the person had drugs in their system.
If you have been charged with refusing a roadside drug test, the circumstances surrounding the refusal, the police procedure and the evidence available will all be important.
What Is a Roadside Drug Test?
Victoria Police conduct roadside drug testing to detect the presence of certain prescribed drugs in drivers.
Testing may occur at:
roadside drug testing stations;
random traffic operations;
booze buses;
collision scenes; or
other police traffic operations.
The testing process may involve several stages.
Preliminary Oral Fluid Test
The driver is required to provide a saliva sample using a roadside testing device.
Further Oral Fluid Testing
If the preliminary test indicates the possible presence of a prescribed drug, the driver may be required to provide a further sample for laboratory analysis.
Blood or Urine Testing
In some circumstances, police may require blood or urine testing, including after collisions or where oral fluid testing cannot be completed.
Can You Refuse a Lawful Roadside Drug Test in Victoria?
No. If police make a lawful request for a drug test, drivers are generally required to comply.
A person may be charged with refusing a drug test if they:
refuse to provide a saliva sample;
fail to provide a sufficient sample;
fail to cooperate with the testing process;
leave before testing is completed;
refuse further testing after a preliminary result; or
refuse another form of testing where police are legally entitled to require it.
The prosecution does not usually need to prove that the driver was affected by drugs. The focus is whether police made a lawful request and whether the person failed or refused to comply.
Is Refusing a Drug Test a Criminal Offence?
Yes. Refusing a roadside drug test is an offence under Victorian road safety legislation.
The exact charge and penalty depend on:
the type of test refused;
the circumstances of the police interaction;
whether the person has previous traffic offences;
whether the matter is dealt with by infringement or in court; and
whether there are aggravating circumstances.
Refusal offences are treated seriously because drug testing is an important part of Victoria's road safety system.
What Is the Penalty for Refusing a Drug Test in Victoria?
The consequences of refusing a drug test can include:
fines;
a criminal conviction;
licence cancellation or disqualification;
immediate licence suspension;
mandatory education or behaviour change requirements;
a good behaviour bond or community correction order; and
increased penalties for future offences.
The court must impose a period of licence disqualification. The consequences can be significant, particularly for people who rely on driving for work, family responsibilities or study.
Unlike some other jurisdictions, Victoria does not generally provide a special "work licence" that allows a person to continue driving during a period of disqualification.
Will You Lose Your Licence for Refusing a Lawful Drug Test?
If proven, yes.
Licence consequences are one of the most serious aspects of a refusal charge. Depending on the offence, the court may be required to cancel or disqualify a person's licence.
The impact can include:
inability to drive to work;
difficulty caring for family members;
loss of employment opportunities;
problems attending medical appointments; and
restrictions on daily activities.
The court may consider the circumstances of the offence and the person's history, but mandatory licence consequences may apply.
Common Reasons People Refuse a Drug Test
People may refuse or fail to complete a drug test for many reasons. However, not all reasons provide a legal defence.
"I Had Not Taken Drugs"
This is not a defence to refusing a lawful test. The offence relates to refusing a lawful requirement, not whether drugs were present.
"I Thought the Test Was Unreliable"
Concerns about the accuracy of testing generally do not allow a person to refuse. Any dispute about the reliability of evidence is usually dealt with through the legal process.
"I Use Medicinal Cannabis"
Having a prescription does not prevent a person from being charged under Victorian drug-driving laws. It is illegal to drive impaired, under the influence of drugs or with any amount of Delta-9-tetrahydrocannabinol (THC), found in many medicinal cannabis products, detected in your system. Further, it is not relevant as a reason to refuse a test.
"I Needed My Licence for Work"
Employment hardship is relevant in a court's assessment in sentencing, but it cannot impact on a mandatory licence disqualification required by legislation.
"I Panicked or Did Not Understand"
While the circumstances of the interaction may be relevant, the outcome will depend on the overall context, including what police explained and how the person responded.
Can You Defend a Refusal Charge?
Yes. A refusal charge may be defended where there is a proper legal or factual basis.
Possible issues include:
Was the Police Request Lawful?
The prosecution must establish that police had the legal power to require the test.
Did the Person Actually Refuse?
There may be a difference between deliberately refusing and being unable to provide a sample despite genuine attempts.
Was There a Medical Reason?
Medical conditions affecting saliva production, breathing or the ability to comply may be relevant in some cases.
Did Police Follow the Correct Procedure?
The circumstances of the testing process, including what was said by police and the driver, may be important.
Was the Charge Correctly Filed?
The precise wording of the charge and the evidence supporting it must be examined.
What Evidence Is Important in a Refusal Case?
The available evidence may include:
police statements;
body-worn camera footage;
roadside testing records;
drug bus records;
custody records;
medical evidence;
witness statements;
traffic history; and
any statements made by the accused.
Often, the key issue is what happened during the interaction between police and the driver. Small details about the instructions given, responses provided and attempts to comply may become important.
What Happens in Court for a Refusing a Drug Test Charge?
Refusal charges are dealt with in the Magistrates' Court of Victoria.
The process usually involves:
First Court Appearance
The court considers whether the matter is ready to proceed and deals with any immediate issues.
Reviewing the Evidence
The defence reviews the prosecution material, including police statements and any available footage.
Case Conferencing
The prosecution and defence may discuss whether the charge can be resolved, amended or withdrawn.
Contest or Plea Hearing
If the charge is disputed, the matter may proceed to a contested hearing where the magistrate decides whether the offence has been proven.
If the charge is admitted, the court will consider penalty submissions.
What Should You Do After Being Charged?
After being charged with refusing a roadside drug test, you should consider:
obtaining a copy of the charge documents;
noting any court dates and licence suspension periods;
requesting and reviewing the prosecution material;
preserving any evidence that may assist your case;
writing down your recollection of what occurred;
identifying possible witnesses;
obtaining medical evidence if you could not provide a sample for a genuine reason; and
obtaining legal advice before deciding whether to plead guilty or contest the charge.
Do not continue driving if your licence has been suspended or cancelled. Driving while disqualified can result in further criminal charges.
Key Points
Refusing a roadside drug test in Victoria is a serious traffic offence and can result in fines, licence cancellation and other consequences.
The prosecution does not need to prove that drugs were present. The key issue is whether police made a lawful testing requirement and whether the driver failed or refused to comply.
A refusal charge may be challenged where there are issues about the legality of the request, the circumstances of the alleged refusal, or whether the person was genuinely unable to comply.
Evidence such as body-worn camera footage, police records, medical evidence and witness accounts may be important when assessing the strength of the case.
Early legal advice is important because refusal offences involve mandatory licence consequences and may significantly affect employment, family responsibilities and daily life.
Need Advice About a Drug Driving Charge?
If you have been charged with refusing a roadside drug test in Victoria, obtaining legal advice early can help you understand your options and the potential consequences.
A criminal defence lawyer can review the evidence, advise whether the charge can be challenged, negotiate with the prosecution where appropriate, or assist with preparing submissions on penalty.
See Criminal Defence Services for more information about how Stary Norton Halphen & Galbally can assist.
Reviewed by: Luke Metherell
For any information or assistance, please contact our legal team.
You can reach us at 03 8622 8200 or through our online form.