Refused a Breath Test in South Australia?

Refusing a Breath Test

Refused a breath test? That alone can land you with a criminal record, a licence disqualification, and fines up to $2,900, even if you never took a sip.

Under section 47E of the Road Traffic Act 1961 (SA) refusing or failing a breath test — whether roadside (alcotest) or police station (breath analysis) — is a serious drink driving offence.

Book a free 30 minute consultation with an Adelaide traffic lawyer.

Penalties also include:

• Mandatory licence disqualification
• Alcohol interlock conditions
• Imprisonment in serious or repeat cases
• Probationary licence conditions after disqualification

The disqualification cannot be reduced or substituted in any way unless the court deems it a first offence that is “trifling”.

Even then, you must be disqualified from driving for 1 month and your licence will be subject to probationary conditions.

We’ve helped clients get charges withdrawn, avoid convictions, and dramatically reduce penalties. Book a free 30-minute consult.

When Can Police Require a Breath Test?

Under section 47E, a police officer in South Australia may direct you to undergo an alcotest or a breath analysis if they:

• Reasonably believe you have driven or attempted to drive a motor vehicle, or supervised a learner driver.
• Suspect you have committed a traffic offence involving driving (e.g., speeding) or you have been involved in an accident.
• Conduct random breath testing at a driver testing station (they can stop any vehicle approaching a station, or on a road near certain events).

What’s the Time Limit?

The request to produce a breath sample cannot be made more than 8 hours after the conduct of the person giving grounds for the request.

Refusing or failing to provide a sufficient sample of breath or to cooperate with police directions, like blowing into the device constitutes an offence in its own right, distinct from any drink driving charges.

If any delay occurs (e.g., waiting 20 minutes for mouth alcohol to dissipate), that typically does not invalidate the procedure.

Police Must Have Reasonable Grounds (Except RBT Stations)

Outside of random testing, a police officer needs:

• A reasonable belief you drove or attempted to drive.
• More than suspicion, but not full proof.
• A belief that is genuinely held and objectively reasonable.

Gannon v Police [2005] SASC 502 confirms that any police officer (not just the one using the device) may hold this belief.

This standard is more than mere suspicion but does not require absolute proof.

No Caution Required

In Benisz v Police [2022] SASC 120, the court clarified that police don’t need to caution you before testing. You don’t have the right to refuse until after a caution is given.

Can Police Enter Private Property?

Yes – a majority of the High Court of Australia in Roy v O’Neill [2020] 45 confirmed that police have an implied licence to approach your driveway or premises if acting with legitimate purpose.

This means if you are on private land (e.g., your driveway), a police officer can approach you if they hold a legitimate purpose or implied licence to enter your property.

If they reasonably believe a traffic offence occurred, they may demand a test.

Two Step Breath Testing Procedure

Breath testing for drink driving in South Australia involves two steps:

1. Alcotest (Roadside Screening Test)

1. • Administered roadside through a small handheld unit. You exhale into it while seated in your car.
   • If the result shows no alcohol above the threshold, you are free to go however police may still require you to submit to a drug testing.
   • If it indicates you may be over the limit, you must submit to a breath analysis.
2. Breath Analysis (Breathalyser Machine) 

• • A more precise apparatus that measures your breath alcohol level.
  • Usually in the boot of a police vehicle or conducted at a nearby police station.
  • The reading is presumed to reflect your blood alcohol level for 3 hours before the test.
  • A breath analysis cannot be required unless you first receive a positive/indicative result on the alcotest, except in some circumstances.

Whats Counts as Refusing?

You commit an offence if you:

• Fail to follow any reasonable direction.
• Refuse or fail to exhale properly into the device.
• Fake unconsciousness such as in Police v Lester [2013] SASC 502.
• Provide an insufficient breath sample such as by not sealing your lips around the mouthpiece or not exhaling hard enough.
• Lock yourself in a car or walk off.

Specifically, section 47E(3) states it is an offence if you:

• Refuse or fail to comply with all reasonable directions from a police officer relating to the breath test.
• Specifically refuse or fail to exhale (blow) into the apparatus as instructed.

Do Police Need Evidence to Demand a Breath Test?

Yes, outside RBT stations. Police need reasonable belief, not suspicion. This must be:

• Clear (not speculative).
• Held by at least one officer.
• Judged against the circumstances at the time.

However, reasonableness depends on context (e.g., waiting a short time for a breathalyser, not smoking, etc.).

Courts weigh whether an ordinary person in the officer’s position would consider the direction necessary.

Police Must Read You the “Prescribed Oral Advice”

Before prosecuting a driver for refusing breath testing, police must provide the “prescribed oral advice” to advise the driver of consequences of noncompliance and the right to request blood sampling.

This ensures driver’s are not ignorant of the severe penalties or alternative testing options.

Police errors such a failure to read the prescribed oral advice correctly do occur and result in the charges being withdrawn or dismissed such as in our recent case study.

If this isn’t done correctly, the charge may be withdrawn — we’ve had charges dropped on this basis.

Penalties for Refusing a Breath Test

Even if deemed “trifling” (i.e. minor), the court must disqualify you for at least 1 month and impose probationary conditions.

Refusing Breath Test While Child Present

Under s 47E(3a), refusing with a child under 16 in the vehicle:

• Triggers mandatory disqualification.
• May lead to alcohol dependency assessment before regaining a licence under section 79B(1)(c)(i) of the Motor Vehicles Act 1959 (SA) before reapplying for their licence.

Defences to Refusing a Breath Test in SA

There are several defences for refusing a breath test in South Australia, these include:

1. Unlawful Demand – The request was not lawfully made (e.g., the police had no reasonable grounds to believe you drove or tried to drive) or the request occurred more than 8 hours after the alleged driving.
2. Incorrect Prescribed Oral Advice – You were not provided a chance to comply after police explained the consequence of refusing and your right to request a blood sample.
3. Physical or Medical Condition – If you genuinely cannot blow (e.g., severe asthma, diminished lung capacity), you must request a blood test. If you fail to request a blood test, you generally cannot later rely on a medical condition as a defence.

Related Offences You Might Also Be Charged With

• Driving Under The Influence or Drinking and Driving – Even without a test result, police may charge you based on observation (Chambers v Police [2008] SASC 160).
• Driving Disqualified – If you drove while under a ban, you risk an additional charge under s 91 with very serious penalties.
• Drug Driving – Police can similarly require a drug test if they have grounds under s 47E to suspect you of drug impairment.
• Aggravated Driving Without Due Care.

Police Powers & Random Testing Stations

Under section 47DA, police can:

• Set up stations anywhere
• Stop and test any driver
• Require you to complete both an alcotest and breath analysis

Police also have broad powers to test drivers who:

• Appear impaired;
• Where they suspect a DUI;
• Commit a driving offence; or are
• Involved in an accident.

If you approach a driver testing station in South Australia, you can be stopped, required to submit to an alcotest, and if positive, to complete a breathalyser test.

Why Legal Advice Is Critical

Refusing a breath test may result in crushing penalties and have serious consequences, such as:

1. Automatic licence disqualification from 12 months to 3 years.
2. Fines of up to $2,900, plus prosecution costs, court costs and a victims of crime levy.
3. A criminal conviction being recorded which is disclosable for 10 years.
4. Having an adverse impact on your car insurance policy.
5. Potential aggravating circumstances in future drink or drug driving matters.
6. Mandatory Alcohol Interlock Conditions being placed on your driver’s licence equal to the period of disqualification in addition to probationary licence conditions.
7. Further offence of drive unlicensed after a serious drink driving conviction which attracts a further mandatory disqualification and imprisonment.

How Our Traffic Lawyers Help

Given the strict penalties, it is essential to get advice from an expert traffic lawyer in order to review:

• Whether the police followed correct procedure (advising you of rights, allowing you to request blood, giving you a final chance to comply).
• Any legitimate medical reason or immediate request for blood sampling.
• Possible penalty reduction—whilst rare, a trifling application may reduce the 12-month disqualification to 1 month for a first offence.
• Impact on your car insurance policy.

Book a Free 30 Minute Consultation

Speak with our Adelaide traffic lawyers for tailored advice if you are charged with refusing a breath test.

We will tirelessly explore every option to protect your licence from a 12-month minimum or 3-year mandatory disqualification, fight to reduce demerit points, challenge the evidence and help you keep your licence. Book a free 30 minute consultation.