Challenging the Reading – What Are Your Rights?

Posted on August 18th, 2019 by admin

Have you been breathalysed and given results that you don’t agree with?

Or want to know your rights in the case of this occurring?

Unfortunately, what you are able to do to challenge the breathalyser’s readings is very minimal. But it’s important to know what the police can and can’t do. And what you can do if you don’t agree with the reading.

When can a police breathalyse you?

A police can request a breath test if:

✓ You are currently driving a motor vehicle
✓ You have recently driven a motor vehicle within the last 3 hours
✓ They have reasonable suspicion that you have recently driven
✓ You have moved a vehicle (even if it’s just to move a little bit)
✓ You are “in charge” of a vehicle, which means sitting in the driver’s seat and the keys are within reach
✓ You have been the supervisor for a learner driver
✓ An accident has occurred and they have reason to believe you were involved
✓ You have committed any driving offence (speeding, running a red light etc)

Can I refuse the breath test?

In most cases, no.

You must comply and provide a sufficient breath sample. It is an offence to refuse and you will be taken to the police station if so.

However, if it has been more than 3-hours since you last drove a motor vehicle or if you are at home (except where you’re at home after being involved in an accident), police are not allowed to breath test you .

What if I don’t agree with the results of my breath test?

Breathalysers are not 100% accurate.

If you do not agree with the results of your breath test, you are able to take the case to court and request a lawyer to aid you. This is usually when you believe the instrument used was faulty and/or gave an incorrect reading due to interference (operator, medications, illness / diabetes). Or if 3-hours have passed since you last drove, you can also contest the result.

Another thing you can do is request a blood sample to be taken. This will be analysed by professionals and you will be given the right to hire a professional of your choice to conduct a separate analysis (on top of the existing one).

Have you been caught drink driving and don’t agree with your reading? Get in touch with a specialised traffic lawyer for legal assistance.

Phone us on 1300 333 669 or send an email to