Refusing a blood test under s 49(1)(ea): what Victorian drivers need to know
If police have asked you to give a blood or urine sample after a roadside drug assessment and you said no, you may be charged under section 49(1)(ea) of the Road Safety Act 1986 (Vic). The consequences are serious. A conviction carries a mandatory minimum licence disqualification of two years for a first offence, and the court has no power to reduce it.
This guide explains when the offence applies, what the penalties are, and the defences that may be open. It is general information only.
What is the offence under s 49(1)(ea)?
Section 49(1)(ea) makes it an offence to refuse to comply with a police requirement under section 55B(1) or section 55BA(2) of the Road Safety Act to:
allow a registered medical practitioner or approved health professional to take a blood sample, or
furnish a urine sample after a drug impairment assessment.
This is a drug-driving offence. It is different from refusing a breath test or a blood test in an alcohol investigation, which falls under other paragraphs of s 49(1).
How does a drug impairment assessment lead to a blood or urine requirement?
The requirement for a sample does not arise at random. It follows a drug assessment under section 55A.
1. When police can require an assessment. A police officer can require a person to undergo a drug impairment assessment in several situations, including when the person is found driving or in charge of a motor vehicle, is the driver of a vehicle stopped at a preliminary testing station, or is required to give a breath sample. The officer must form the opinion that the person's behaviour or appearance indicates they may be impaired for a reason other than alcohol alone.
2. Who can carry it out. The assessment must be done by a police officer authorised by the Chief Commissioner of Police. A person is not obliged to undergo an assessment if more than three hours have passed since they last drove or were in charge of a motor vehicle.
3. What the assessment involves. The procedure is set by a Government Gazette notice and has four parts: an interview, the Horizontal Gaze Nystagmus test (tracking a stimulus with the eyes), the Walk and Turn test, and the One Leg Stand test. The officer completes a Standard Impairment Assessment Report as the assessment goes.
4. Video recording. The assessment must be video-recorded unless the prosecution satisfies the court that exceptional circumstances prevented it. If you are charged, the recording and the written report must be served on you with the summons, or within seven days after the charge-sheet is filed.
5. The requirement for a sample. If the assessment indicates impairment, any police officer may then require you to allow a blood sample to be taken, to give a urine sample, or both (s 55B(1)). A refusal at this point is what exposes you to a s 49(1)(ea) charge.
Penalties for refusing a blood or urine sample
Under s 49(3), the maximum penalties depend on your history:
First offence: a fine of up to 12 penalty units.
Second offence: a fine of up to 120 penalty units or up to 12 months' imprisonment.
Any subsequent offence: a fine of up to 180 penalty units or up to 18 months' imprisonment.
The fine is only part of the picture. The licence consequences are usually the more significant penalty.
Mandatory licence cancellation and disqualification
On a conviction or finding of guilt under s 49(1)(ea), section 50(1D) requires the court to cancel your licence or learner permit and to disqualify you from obtaining one for a period the court thinks fit, but not less than:
two years for a first offence, and
four years for a subsequent offence.
The court has no discretion to go below those minimums, although it can impose a longer period. This applies even if you do not hold a licence when you are sentenced. Any period of immediate licence suspension or disqualification you have already served under the Act's other provisions must be deducted from the disqualification the court imposes.
Can you be convicted if police made a procedural mistake?
Sometimes yes. Section 49(1A) says you can still be convicted of a s 49(1)(ea) offence even if, for example, the officer had not nominated the medical practitioner or health professional to take the sample, or no such person was present where the requirement was made. That makes it important to look carefully at which procedural errors actually affect the charge.
Possible defences to a s 49(1)(ea) charge
There is no specific statutory defence written into s 49(1)(ea). Unlike some other paragraphs of s 49, it has no built-in statutory defence. Defences come from the elements the prosecution must prove and from general criminal law principles.
1. The requirement was not valid
The prosecution must prove that a valid requirement was made. A requirement is only valid if it was made in circumstances Part 5 of the Act provides for. If there was no proper legislative trigger, for example the drug assessment itself was not lawfully required or was not carried out in accordance with the gazetted procedure, you may have been under no legal obligation to comply. You cannot refuse to do something the law did not require of you.
The prosecution must also show you were given enough information to understand what was being asked and why.
2. The refusal was not conscious, voluntary and willed
The prosecution must prove your refusal was conscious, voluntary and accompanied by the will to do it. A defence based on automatism, or on a condition that left you without any appreciation of what was being asked, may be open in some circumstances. These defences are not readily made out and usually need medical evidence.
3. Identity
The prosecution must prove you were the person who refused. Failure to prove identity is fatal to the charge.
What is not a defence
Prescription medication. The defence in s 49(3B), which deals with prescription and permissible non-prescription drugs, applies to the drug-impairment driving charge under s 49(1)(ba). It does not apply to a refusal charge under s 49(1)(ea).
Involuntary consumption. It is not a defence under Part 5 that drugs were consumed involuntarily and without negligence.
What should you do if you have been charged?
Do not ignore the summons. Failing to attend court makes things worse.
Get the brief early. Ask for the video recording of the drug assessment and the written report. Whether the assessment followed the gazetted procedure can decide whether the requirement was valid.
Write down what happened. Note what was said to you, when, and what you understood.
Seek legal advice before you plead. Because disqualification is mandatory on a conviction, the decision to plead guilty has long-term consequences for your licence, work and family.
Frequently asked questions
Is refusing a blood test in Victoria a criminal offence? Yes. Refusing a lawful requirement for a blood or urine sample after a drug assessment is an offence under s 49(1)(ea) of the Road Safety Act 1986 (Vic).
What is the minimum licence disqualification for refusing a blood or urine sample? Two years for a first offence and four years for a subsequent offence. The court cannot impose less.
Can I refuse a drug assessment? If police lawfully require you to undergo an assessment under s 55A, refusing is a separate offence. Whether the requirement was lawful in your circumstances, including the three-hour limit, is something a lawyer should review.
Does a prescription medication excuse a refusal? No. The prescription-drug defence in s 49(3B) does not apply to s 49(1)(ea).
Talk to O'Haire Legal
O'Haire Legal acts for people charged with drug-driving and refusal offences in Victorian courts. If you have been charged under s 49(1)(ea), contact us for advice before your first court date.
O'Haire Legal 5/21 View Point, Bendigo VIC 3550 (03) 7064 0341 home@ohairelegal.com.au
This article is general information only and is not legal advice. The law changes and every case turns on its own facts. Speak to a lawyer about your situation.
