Hi there. In South Australia, a police officer has the power to require a person to submit to an ‘alcotest’ or breath analysis if the officer believes on reasonable grounds that a person is driving or has driven a motor vehicle. It is an offence to not comply with the officer’s request for testing (e.g. refusing to exhale into the apparatus).

Penalties that may be imposed for non-compliance include a fine, ranging from $1,100 to $2,900. By law, a person convicted of this offence will also be disqualified from holding a driver’s licence for a minimum period of 12 months (for a first offence) or a minimum period of 3 years (for a subsequent offence). However, for a first-time offender, the court has discretion to reduce the disqualification period to 1 month, if deemed appropriate in the circumstances. Any prior driving offences will be considered by a court when deciding on an appropriate penalty.

From the information you provided, your husband may have committed an offence by refusing to submit to the breath test requested by the police officer. Your husband may have a valid defence if he had good cause for refusing or failing to comply with the police officer’s request. What is considered ‘good cause’ will largely depend on the facts of your husband’s situation and the events of that day.

Note that a person cannot lawfully refuse a breath test simply because the person consumed alcohol after they last drove the vehicle. In this situation, the law requires the person to still submit to the testing.

It is not clear whether your husband has actually been charged with the offence of non-compliance or any other offence in relation to this event. If he has been charged, he would have received written notification from the police on the day, or subsequently in the mail. If he is charged, he will need to attend court for a hearing. If he is not charged, the matter will be discontinued.

Suggested way forward

You may want to contact your local police station to find out if your husband has a charge against him. If he has been charged, you should consider speaking to a criminal lawyer who can advise you of your husband’s rights and the best way to prepare for court. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.