Can You Be Charged If You Refuse A Saliva Sample? (Victoria)

Can You Be Charged If You Refuse A Saliva Sample? (Victoria)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, and refusal to do so can result in heavy fines and loss of license, with even harsher penalties for repeat offenders.

That being said, the answer depends 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. If you've been charged with refusing a saliva sample and you need legal help, then you can contact our experienced drink driving lawyers at Josh Smith Legal for a free consultation.

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 that there is a 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

There are two roadside drug tests in Melbourne: preliminary and evidentiary oral fluid tests. Also known as breath tests, preliminary oral fluid tests are conducted to determine blood alcohol concentration (BAC) levels and if they exceed the legal limits of 0.05g or zero for drivers on probation.

If the results are negative for alcohol, they will use prescribed devices to detect drugs, including cannabis, methamphetamine, and MDMA in your saliva next.

Evidentiary Oral Fluid Tests

If you fail both preliminary tests, 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. Based on the lab’s final results, this forms 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 when this article is being written, 1 penalty unit is worth $187.92.

For refusing preliminary oral fluid tests, the penalties may involve:

  • 49(1)(c) guilty charge for refusal to comply with a breath test
  • 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:

  • 49(1)(ca) guilty charge for refusing to comply with a drug impairment assessment
  • 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 license disqualification duration period will be lower with limited exceptions.

Penalties for Positive Test Results of Combined Alcohol and Drugs

Lastly, if the results from any saliva sample are a combined alcohol and drug offence, higher penalties are involved.

The Victorian Transport Resources states a positive oral fluid test of both alcohol and drugs includes the following potential penalties:

  • Traffic Infringement Notice (TIN) issued
  • Driver’s license suspension or cancellation
  • Behaviour Change Program (BCP) completion for three months or risk a canceled license suspension
  • Intense BCP if you have completed a BCP for a prior offence
  • License Eligibility Order (LEO) from a Magistrates’ Court hearing
  • $577 fine

The penalties for refusing a saliva sample vary depending on the elements of your offence and test results.

Legal Defences for Saliva Sample Refusal Charges

If you’ve been charged with refusing a saliva sample, then it’s important to understand your legal defences.

There are legal defences available for oral fluid test refusal charges:

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:

  1. https://www.police.vic.gov.au/drug-driving-infringement-process
  2. https://www.vicroads.vic.gov.au/about-vicroads/acts-and-regulations/road-safety-act-updates-and-new-driver-regulations-2019
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Staff Writer

Emma is a staff writer at Josh Smith Legal with a law and arts double degree. She expertly bridges the gap between legal intricacies and clear communication.

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