In Victoria, you can be charged if you refuse a saliva sample. It’s an offence to refuse to comply with a request to provide a sample of oral fluid when lawfully requested to do so by a police officer. Refusal can result in heavy fines and loss of licence, with even harsher penalties for repeat offenders. If you are facing this kind of offence, our experienced traffic lawyers at Josh Smith Legal will gladly help you resolve all your charges.
The consequences depend on the type of fluid test refused, grounds for defence, and the offence elements. Below is a guide on drug tests in Melbourne, potential penalties, and how to seek legal counsel.
Melbourne Police Officers Can Legally Ask You To Conduct A Roadside Drug Test
Victorian Police Officers can pull over anyone and ask them to conduct a roadside drug test, either as a random test or because they suspect there is probable cause. Victoria Police also operates a random roadside drug testing (RDT) program with checkpoints throughout metropolitan Melbourne and regional areas in Victoria. They have the legal right to pull drivers over, including highway patrol, unmarked vehicles, and motorcycles.
Preliminary Oral Fluid Tests
Preliminary oral fluid tests are conducted to detect drugs such as cannabis, methamphetamine, and MDMA in your saliva.
Evidentiary Oral Fluid Tests
If you fail the preliminary oral fluid test, Victorian Police will conduct an evidentiary oral fluid test inside their vehicles. Saliva samples with positive test results from a drug impairment assessment are sent to a laboratory for verification. The lab’s final results form the legal basis of charges.
Penalties for Refusing a Drug Test in Melbourne
In Victoria, monetary fines are measured by “penalty units”. As of June 2023, 1 penalty unit is worth $187.92.
For refusing preliminary oral fluid tests, the penalties may involve:
- Guilty charge for refusal to comply with a breath test (49(1)(c))
- Up to 12 penalty units for a first offence
- Up to 120 penalty units for a second offence or 12 months imprisonment
- Driving disqualification for 2 years for a first offence
- Driving disqualification for 4 years for a second offence
If you refuse to comply with evidentiary oral fluid tests, the penalties may involve:
- Guilty charge for refusing to comply with a drug impairment assessment (49(1)(ca))
- Up to 12 penalty units for a first offence
- Up to 120 penalty units for a second offence or 12 months imprisonment
There are also legal consequences if you initially refuse a saliva sample and later consent. Depending on the prosecution, you may not be charged for refusing to comply. However, if the drug test shows positive results, the charges will proceed, but the licence disqualification duration period may be lower with limited exceptions.
Penalties for Positive Test Results of Combined Alcohol and Drugs
If the results from any saliva sample show a combined alcohol and drug offence, higher penalties are involved.
According to Victorian Transport Resources, a positive oral fluid test for both alcohol and drugs includes the following potential penalties:
- Traffic Infringement Notice (TIN) issued
- Driver’s licence suspension or cancellation
- Behaviour Change Program (BCP) completion for three months or risk a cancelled licence suspension
- Intense BCP if you have completed a BCP for a prior offence
- Licence Eligibility Order (LEO) from a Magistrates’ Court hearing
- $577 fine
Legal Defences for Saliva Sample Refusal Charges
If you’ve been charged with refusing a saliva sample, it’s important to understand your legal defences.
There are legal defences available for oral fluid test refusal charges:
- “Reason of substantial character” and its limitations
- Contesting driving charges
- Hearing case preparation
Understanding your legal rights is crucial if you have been charged with refusing oral fluid tests because each case is unique and will vary in potential penalties.
Seek Legal Counsel for Your Saliva Sample Refusal Charges in Melbourne
Seeking legal counsel is always recommended to help you navigate complex court processes and understand your rights.
If you have been charged for a saliva sample refusal in Melbourne, contact us for traffic violation legal representation. Our criminal defence attorneys can help you prepare a strong case for court hearings to determine the viability of your defence.
Resources & Further Reading
- https://www.police.vic.gov.au/drug-driving-infringement-process
- https://www.vicroads.vic.gov.au/about-vicroads/acts-and-regulations/road-safety-act-updates-and-new-driver-regulations-2019
