Have you Been Charged with Refusing to Undergo an Oral Fluid Test?
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Driving While Impaired by a Drug
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Exceeding the Prescribed Concentration of Drugs Present in the Body
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Driving Over the Concentration of Drug and Alcohol Limit
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Refusing to Undergo an Assessment for Drug Impairment
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Refusing to Comply With Directions to Provide Additional Samples for Analysis
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Refusing to Undergo an Oral Fluid Test
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Exceeding the Prescribed Concentration of an Illicit Drug (Blood Analysis) within 3 Hours of Driving or being in Charge of a Motor Vehicle
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Expca (Blood Analysis) of Alcohol and Drugs Within 3 Hours of Driving of Being in Charge of a Motor Vehicle
What does it mean to be charged with refusing to undergo an oral fluid test?
Under Section 49(1)(eb) of the Road Safety Act, a person is guilty of an offence if they refuse to provide a sample of oral fluid when required by police, as outlined in sections 55D or 55E.
This charge is applicable when a police officer requests an oral fluid sample to test for the presence of drugs. The key aspect of this offence is the refusal to comply with the lawful request to provide the sample.
What the Prosecution Must Prove?
To secure a conviction under this charge, the prosecution must demonstrate the following:
- The prosecution must show that a police officer lawfully required you to provide a sample of oral fluid in accordance with sections 55D or 55E.
- You explicitly refused to provide the oral fluid sample.
This can be established through evidence of a verbal refusal or conduct that indicates a refusal to cooperate.
The prosecution does not need to prove the presence of a prescribed device, the availability of a testing device, or the presence of an authorised officer at the time of the request. The offence stands regardless of these factors.
The request must have been made during an appropriate context, typically in connection with a traffic incident or a roadside stop.
What does refusal to take a test look like?
Refusing to take the test can happen either by saying no or by your actions. Refusal can include:
- Saying no to the officer’s request
- Refusing to go with the police to take the test
- Physically preventing the test from being done
Penalties for refusing to provide an oral fluid sample:
If convicted of refusing to provide a sample of oral fluid under section 49(1)(eb), the penalties are as follows:
- First Offence: A fine of up to 12 penalty units.
- Second Offence: A fine of up to 60 penalty units.
- Subsequent Offences: A fine of up to 120 penalty units.
These penalties apply to offences involving refusal to provide a sample, distinct from any other offences related to alcohol or drug impairment that may carry different consequences.
Further you risk license disqualification for a minimum 2-4 years.
Where will my case be heard?
Driving Offences Involving Alcohol or other Drugs: Refusing to Comply with a Requirement Made Under Section 55B(1) and 55BA(2) cases will be heard will be heard in the Magistrates Court.
Factors and defences to consider:
- Were you driving or in charge of a vehicle when stopped by police?
- Did you refuse to provide an oral fluid sample?
- Did you understand/comprehend what police were asking of you at the time of the request?
- Why did you refuse?
- Were you impaired at the time of request?
- Do you have any previous convictions of a similar nature?
- What were the surrounding circumstances of this offence?
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What happens next?
If you have been charged with refusing to provide an oral fluid sample, it’s crucial to act quickly and effectively to protect your legal rights and ensure the best possible outcome.
Now is the time to make sure that you have a lawyer who can give you sound advice, help you prepare your evidence, and discuss the key issues to be addressed in your matter. Preparation is essential to the success of any case, especially if your driver’s licence is important to your livelihood and daily life.
Importance of Legal Representation
Facing court without legal representation can put your rights at risk. A lawyer will not only help you understand the charges but also navigate the court process and build a strong case on your behalf. In cases where your licence is on the line, having professional guidance is especially important.
For example, under section 50AA of the Road Safety Act (RSA), if you have a conviction for a driving offence more than 10 years ago, it will not be counted as a prior offence for the purposes of disqualification. However, the Magistrate still has the discretion to disqualify you from driving for longer than the mandatory two-year minimum, even if there’s more than 10 years between offences.
Immediate Licence Suspension
If you’ve been charged with immediate licence suspension, the police may have already suspended your licence under section 85A. This suspension prevents you from driving until your case is determined in court. However, this suspension can be appealed, and a lawyer can assist you in making this application while awaiting your court date.
MK Law today on 1800 130 120 to ensure you have the right legal support. We will guide you through the legal process, help you prepare your defence, and ensure that your rights are protected every step of the way. Our experienced team understands how vital your licence is, and we will work with you to achieve the best outcome possible.
Contact us now to get the legal advice and representation you need.
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