Refusing or Failing to Provide a Breath Test in New South Wales

KEY TAKE AWAYS:

• Drink driving is a factor in about 18% of all fatal crashes in NSW.
• Refusing a breath analysis test in NSW is an offence under the Road Transport Act
• It is important to gain legal advice in case a legal defence is available to you and in your circumstances.

In New South Wales, police have the power to require a driver to provide a roadside breath test or a breath analysis sample for the purpose of random alcohol testing. It is an offence to not comply with these requests without a lawful excuse.

A roadside breath test is the initial test the police utilise and if the person has tested positive, the police will complete a breath analysis sample in order to obtain a more accurate reading. The breath analysis sample requires a driver to blow into a machine and it produced a blood alcohol content (BAC) reading.

The offence of failing to provide a breath analysis sample is contained in section 16 of the Road Transport Act 2013.

Penalties

Refusing a breath test in NSW is an offence under the Road Transport Act 2013. The maximum penalty is a fine equivalent to 10 penalty units (or about $1,100). There is no automatic licence disqualification, but the court has a discretion to do so.

The penalties for refuse breath analysis are the same as for High Range PCA.

If it is your first conviction for a drink driving offence in the last 5 years then the penalty according to section 16(1)(b) of the Road Transport Act 2013 is a fine of up to $3,300.00, imprisonment for up to 18 months, or both, and an automatic disqualification of 3 years (which may be reduced by the court to a minimum 1 year) .

For a second or subsequent offence in the last 5 years then penalties are:

• a fine up to $5,500
• imprisonment for up to 2 years, and
• an automatic disqualification of 3 years (which may be reduced by the court to a minimum 1 year).

From the 1st February 2015, mandatory Interlock orders came into effect, and in some instances part of the disqualification period may be served with the installation of an interlock device.

Defences to a Charge of Refusing a Breath Test or a Breath Analysis.

1. It is a defence if the driver was unable to submit to the breath analysis due to medical reasons that existed at the time of the request. Expert medical evidence is needed to prove this.
2. A driver does not need to submit to a breath test or analysis if they have been admitted to the hospital for medical treatment, or if it would be dangerous because of injuries they have sustained. However, the police can have the treating medical officer take a blood test to determine the blood alcohol concentration, unless it would be medically dangerous to do so. If a blood sample is taken, the driver will be provided with their own sample so that they can arrange their own testing.
3. A driver does not need to submit to a breath test or analysis if they are at home. The driver must be wholly within their property for this to be a defence.
4. A driver does not have to submit to a breath test or breath analysis if 2 hours have passed from the time that the police were entitled to ask them to undergo the test.

Will I Get a Criminal Record?

For failing or refusing to provide a breath analysis sample it is very likely the court will impose a conviction which will result in a criminal conviction for this type of offence.

If the court is convinced that it is appropriate not to convict a person, their matter may be dismissed under Section 10(1)(a) or with a Conditional Release Order without conviction under Section 9(1)(b) of the Crimes (Sentencing Procedure) Act 1999.

However, if a person has already received the benefit of a non-conviction order within the previous five years for a similar offence, they will not receive another non-conviction order.

How can Coutts help?

At Coutts Lawyers & Conveyancers, our legal team offers the best service at a time when you feel at odds with the law. Coutts has a dedicated team of criminal lawyers available to provide expert advice and reliable service when you need it most. We understand that facing criminal charges is a challenging and daunting experience, with potentially very serious and life-changing consequences. If you have been arrested and need urgent advice, we can be contacted 24 hours a day, 7 days a week on our criminal hotline on 02 8324 7527. Contact Coutts today and let us help you and make everything clear and simple.