From Our Desk

In the state of Queensland, consequences for an individual who declines the police request to search or take a sample of breath or blood can vary depending on the circumstances. Below are a few commonly experienced encounters with law enforcement along with general legal principles that lead to the implications that refusal can have on you. 

Refusing a police interview

Under Queensland law, if Police seek to interview you about any matter, you have the right to remain silent and refuse to be interviewed. This silence cannot legally be used against you. The right to silence is a fundamental common law rule,^[1]and has been further entrenched statutorily, whereby the right for an individual to refuse to answer questions remains unchallenged.^[2] It is however, a requirement to provide your name and address to a police officer if asked.

This does not come without risk, refusal does not stop police from detaining and arresting you, if they have legal grounds to do so. However, even if detained, your right to silence remains in place, with the requirement that the officer explains your rights and cautions to you.^[3] We recommend if you find yourself in this situation, that you ask to speak with a lawyer and seek advice immediately. 

Refusing a breath/blood test

Police can require a roadside breath test in various circumstances. Such as, if you are driving a vehicle, have been driving in the last three hours, have been involved in a traffic crash or they reasonably suspect you of recent driving.^[4] Transport Operations (Road Use Management) Act 1995 (Qld) (“TORUM”) s79, establishes an implied consent to breath test any person driving on the road, requiring that if asked, you are legally required to provide a sample.

If you refuse to provide a breath or saliva sample, or the sample you provide is inadequate, police can issue infringements that carry a disqualification period of six months and fines up to $6000. For context, this penalty is comparable with one applied to high-range drink driving. The same principles apply to drug testing, whereby refusal to provide a saliva sample, may result in detainment and a blood test ordered from a hospital.^[5]

Refusing consent of a search

Police powers to search you, your vehicle or premises without a warrant, under certain circumstances, are established within Police Powers and Responsibilities Act 2000 (Qld) (“PPRA”). Legality to search stems from if the police have obtained a search warrant or if they hold ‘reasonable grounds’ to search.^[6] If they do not hold either, you have the right to refuse the search with no penalty.

Searching without a warrant and based off ‘reasonable grounds’ is when the police suspect you have been involved in criminal activity.^[7] These specific circumstances are contained with the PPRA, s 32. The grounds to search without a warrant, further stem from the common law principle that ‘there must exist some factual basis to reasonably ground the suspicion, but it is unnecessary that there exists proof of the fact reasonably suspected’.^[8]

Reasonable grounds are established if police suspect you are carrying illegal items such as drugs, weapons or stolen goods.^[9] If you refuse, you may be arrested and searched, potentially exposing yourself to the charge of obstruction.^[10]Notably, the police can also use ‘reasonable force’ to complete the search.^[11]

Knowing your rights and if a search was conducted legally requires assistance from a lawyer. A lawyer can ascertain if there was a legal basis for the search, if excessive force was used, if police failed to follow specific procedures, informed you of your rights and if the search obtained unrelated items. Ultimately if you find yourself in this situation, you are required to be fully informed of the reason why police want to search and if there is a warrant or reasonable grounds to initiate the search.

The above are some general pointers for anyone who might have to deal with accusations of criminal charge or nature. If you have found yourself in this situation, get in touch with Fisher Dore Lawyers to schedule a meeting with one of our criminal defence team right away. 

Call us after hours on 0416 205 363. During business hours, the Fisher Dore Lawyers team is available for enquiries on 1300 557 884 or send a confidential enquiry through our website.