Refusing a breath test is almost never the better option.
People do it for all sorts of reasons. Some panic. Some think it will prevent a result being used against them. Some have heard, somewhere, that the police cannot charge you without a reading. Every one of those reasons tends to lead to the same place: a charge that carries exactly the same maximum penalty as high-range drink driving, regardless of how much alcohol was actually in their system.
Queensland law does not treat refusal as a neutral act. It treats refusal as an offence in its own right, and a serious one.
The legal framework: what the Act actually says.
The starting point is the Transport Operations (Road Use Management) Act 1995 (Qld). Under section 80(2) of that Act, a police officer may require a person to undergo a breath or saliva test if the officer reasonably suspects that, within the preceding three hours, that person was driving or in charge of a motor vehicle on a road or in a public place.
Note the scope: it is not limited to the driver behind the wheel at the moment of the stop. A person who parked an hour ago and walked away can still be required to test. The operative question is whether there is reasonable suspicion they were driving within the last three hours.
The power extends to accidents. If a vehicle is involved in a collision causing injury, death, or property damage, police may require any person they reasonably suspect was driving or in charge of the vehicle at the time to submit to testing.
The authority for these powers sits within the Police Powers and Responsibilities Act 2000 (Qld), which governs the procedural steps police must follow when stopping, detaining, and requiring tests from drivers.
The two refusal offences and why the distinction matters.
There are two separate refusal offences in the Act, and they operate differently.
The first is section 80(11): failing or refusing to provide a specimen of breath or saliva when required to do so at the roadside or at the point of initial contact with police. This is the most common refusal scenario.
The second is section 80(15A): failing or refusing to provide a breath specimen at a watchhouse or other nominated place, after police have transported the person there for analysis using an approved instrument. This applies after the roadside phase, where the person has already been detained and taken to a police facility for the more precise evidentiary test.
Both are offences. The watchhouse refusal under section 80(15A) is often treated as more serious because by that point the person has already had time to reflect, has typically been informed of their obligations, and has chosen to refuse the formal analysis that would produce the admissible result.
The penalty: same as high-range drink driving.
Section 80(13) of the Act provides that a person who commits an offence under section 80(11) or 80(15A) is liable to the same penalty as a person convicted under section 79(1) for the highest alcohol limit category.
That means the court treats refusal the same as a blood alcohol reading of 0.15 or above. The mandatory minimum disqualification period applies. Imprisonment is available. The fine range is the same.
| Offence | Maximum fine (first offence) | Minimum disqualification | Imprisonment available |
|---|---|---|---|
| General alcohol limit (0.05 to under 0.10) | 14 penalty units | 1 month | No |
| Middle alcohol limit (0.10 to under 0.15) | 21 penalty units | 3 months | No |
| High alcohol limit (0.15 and above), first offence | 28 penalty units | 6 months | Up to 9 months |
| Refusal to provide specimen (s 80(11) or s 80(15A)) | 28 penalty units | 6 months | Up to 9 months |
A person with a genuinely low reading who refuses ends up facing the same mandatory minimum as someone well above 0.15. The refusal does not protect them. It adds a charge that guarantees a worse outcome than the underlying drink driving offence would have produced.
What police can do after a refusal.
Refusal does not end the process. Section 80(16) of the Act allows police to use such force as is reasonably necessary to take a person to a place where a specimen can be obtained by other means, including a blood or urine sample obtained by a medical officer.
In practice, this means a person who refuses at the roadside may be detained, transported to a hospital or watchhouse, and required to provide a blood sample. That sample, if obtained lawfully, can still produce an admissible BAC result. The refusal charge stands in addition to whatever the blood test shows.
The person has now accumulated two charges rather than one, and has still produced an admissible result.
Is there a lawful excuse for refusal?
Yes, but the scope is narrow. A person who genuinely cannot provide a specimen due to a medical condition may have a lawful excuse. The most common examples are respiratory conditions that make sustained breath exhalation physically impossible, such as severe asthma or chronic obstructive pulmonary disease, and certain neurological conditions.
The key word is “genuinely.” Claiming a medical condition that does not in fact prevent compliance is not a lawful excuse. If the issue is raised, it will be tested. Medical evidence will be required. A court assessing the claim will look at whether the condition is documented, whether it actually rendered compliance impossible (not merely difficult), and whether the person communicated the issue to police at the time rather than raising it later.
Discomfort, anxiety, and a general reluctance to comply are not lawful excuses. Neither is a belief, however sincerely held, that one has consumed only a small amount and the result will be favourable.
The BAC categories for context.
For open licence holders, the general alcohol limit is 0.05. The middle limit is 0.10. The high limit is 0.15 and above. Zero BAC applies to learner and provisional licence holders, heavy vehicle drivers, taxi and rideshare drivers, and driving instructors.
A person in the zero BAC category who refuses faces the same consequences as anyone else charged under section 80(11). The category of licence does not change the penalty for refusal. What it does mean is that any underlying driving offence, if a blood test is later obtained, may be charged as a zero BAC breach rather than one of the higher limit categories. But the refusal charge itself sits where it always sits: at the high-range equivalent.
What happens after the charge.
A refusal charge follows the same procedural path as a drink driving charge. An immediate suspension notice is typically issued at the scene. The matter will be set down in the Magistrates Court. The charge will be proved by evidence of the refusal itself: the officer’s account of the requirement being made, the lawful basis for it, and the person’s response.
There is no BAC reading to challenge. The usual defences to drink driving (post-consumption, machine calibration, operator competency) are not available because there is no machine result in evidence. The question for the court is whether the requirement was lawfully made and whether there was a lawful excuse for non-compliance.
If a blood sample was taken after the refusal, the prosecution may also run the underlying drink driving charge based on that result. A person facing both charges is in a significantly more difficult position than one facing only the drink driving charge.
For advice about charges under the Transport Operations (Road Use Management) Act 1995 (Qld), including refusal charges and drink driving matters, contact Fraser Lawyers.
If you would like to discuss your matter, you can book a consultation or call (07) 5554 6116.
