Offence provisions
Refusing a roadside breath test or failing to submit to a breath analysis is an offence under schedule 3, clause 16 of the Road Transport Act 2013.
What does it mean to refuse a breath test or analysis?
The police often administer a breath test by the side of the road. This requires the driver to speak or breathe into a device, which will provide an indicative reading of the amount of alcohol in their blood. If they refuse to cooperate, they may be charged with refusing a breath test.
If the person submits to the test and the reading is positive, they will be required to attend a police station for a breath analysis, which provides a more accurate reading of the blood alcohol content. If they refuse to attend the police station, or refuse to provide a sample at the police station for the breath analysis, they may be charged with refusing a breath analysis.
Licence suspension
If you are charged with refusing a breath test or analysis, the police can suspend and confiscate your licence within 48 hours of the charge being issued. The suspension will remain in place until the offence is heard by a court. If your licence is disqualified by the court, the magistrate will consider the licence suspension in deciding the disqualification period.
Both a licence suspension and disqualification prohibit you from driving for the specified period. While a licence suspension can be imposed by the RMS or NSW Police without a formal conviction for the offence, a licence disqualification is imposed by a court as part of the penalty for a formal conviction.
Refuse breath test or analysis penalties in NSW
If you are charged with refusing a breath test or analysis, the potential penalties include:
| Penalty | First offence | Subsequent offence |
|---|---|---|
| Maximum fine | $3,300 | $5,500 |
| Maximum prison term | 18 months | 2 years |
| Minimum disqualification | 12 months | 2 years |
| Maximum disqualification | Unlimited | Unlimited |
| Automatic disqualification | 3 years | 5 years |
| Immediate licence suspension | Yes | Yes |
| Interlock order | Yes | Yes |
Consequences of a conviction
If you are convicted of refusing a breath test or analysis, you will have this offence noted on your criminal record and have your licence disqualified.
The automatic disqualification period will apply unless the court makes a specific order. The court can disqualify your licence for any length of time within the minimum and maximum periods listed above.
You will also be required to participate in the alcohol interlock program, and an interlock device will be fitted to your car. This is an electronic breath testing device which stops the car from starting unless the driver provides a zero-alcohol breath sample.
These consequences can be avoided if the court applies section 10 of the Crimes (Sentencing Procedure) Act 1999.
Traffic Offender Intervention Program
The court may give you a more lenient sentence if you participate in the Traffic Offender Intervention Program. This program covers traffic laws and rules, and the potential consequences of breaching the laws. When the course is finished, a certificate will be sent to the court and it can be considered in determining the sentence.
