Automatic licence disqualification
It is an offence to refuse to exhale (blow) into the apparatus used for an alcotest or breath analysis when directed to do so by police [Road Traffic Act 1961 (SA) ss 47E and 47E(3a)]. Refusing a breath test results in an automatic licence disqualification. For further information on penalties see alcohol and drug penalties.
Police powers to test drivers
The police have expansive powers with which to stop and breath test drivers. The police may stop and breath test any person who they reasonably believe has:
- driven; or
- attempted to put a motor vehicle in motion; or
- acted as a Qualified Supervised Driver for a holder of a permit or licence
In addition to these powers the police may stop and breath test any person who they reasonably believe while driving has:
Note: Any request to submit to an alcotest or breath analysis cannot be commenced more than 8 hours after the conduct of the person giving grounds for the request has occurred.
Random breath testing stations
The police may also stop and test any driver of a motor vehicle that approaches a random breath testing station. Police powers to set up breath testing stations have been significantly expanded and a breath testing station can be established at any time an in the vicinity of any road.
A person being tested will generally, particularly at a random breath testing station, be first required to blow into an alcotest - a small hand held unit that drivers usually blow into without leaving their vehicles. Alcotest units must comply with the requirements of the Road Traffic Act 1961 (SA) [s 47H].
Breath analysis machine
Alternatively, or if an alcotest shows that the prescribed concentration of alcohol may be present, the driver can be required to blow into a breath analysis machine — a more sophisticated apparatus that is carried in the boot of most police vehicles. The result indicated by the breath analysis is presumed to have been the person's blood alcohol level for the two hours immediately before the test. If the breath analysis indicates the prescribed concentration of alcohol, the police officer who conducted the test must tell the driver of her or his right to have a blood test taken.
Drivers must be advised of right to blood test
The courts have held that random breath testing procedures must be strictly complied with in order to support a prosecution for an offence of driving with a prescribed concentration of alcohol. Drivers charged with this offence should seek legal advice if they were not adequately advised of their rights to a blood test.
Refuse breath test when child aged under 16 years present in vehicle
It is an offence to refuse to exhale (blow) into the apparatus used for an alcotest or breath analysis test where a person has driven, or attempted to drive, a motor vehicle and a child aged under 16 years is present in the vehicle [see Road Traffic Act 1961 (SA) s 47E(3a)]. Refusing a breath test in these circumstances results in an automatic licence disqualification, and the driver will be required to undergo an alcohol dependency assessment prior to reapplying for their licence [Motor Vehicles Act 1959 (SA) s 79B(1)(c)(i)].
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.