What are the charges of Refuse Breath Test or Analysis?

It is an offence to refuse a breath test in NSW. In most circumstances, if police pull you over, you’re required to provide a sample for the breathalyser.

If you have failed a breath test and refuse to submit a further sample for analysis, you can be also be charged with the offence of refuse breath analysis.

Although you can’t argue that you were waiting for legal advice before providing a sample, you may be able to defend the charge on the basis that:

  • You were unable to comply with the request for medical reasons.
  • You were on your property at the time you were asked to provide a sample.
  • More than two hours has passed since the police were entitled to ask you to provide a sample.
  • You have been admitted to hospital for treatment after an accident or because your injuries are such that it would be dangerous for you to submit to a test.


What are the penalties for Refuse Breath Test or Analysis in NSW?

If you have been charged with the offence of refuse roadside breath test in NSW, in most cases, you will have to participate in the Interlock program. The penalties you face include:


Refuse Breath Test/Analysis Penalties NSW
First major offence within 5 years
Maximum fine$3,300
Minimum disqualification under Interlock6 months
Maximum disqualification under Interlock9 months
Interlock period2 years
Maximum prison sentence18 months
Second major offence within 5 years
Maximum fine$5,500
Minimum disqualification under Interlock9 months
Maximum disqualification under Interlock 12 months
Interlock period4 years
Maximum prison sentence2 years


In very few circumstances, you may be exempt from the Interlock program, which means the periods of disqualification are higher.


How severe is the charge against you?

The courts take a serious view of those charged with refusing a breath test or analysis in NSW, and this is reflected in the sentencing structure and the penalties.

However you may be able to argue, depending on the circumstances surrounding the alleged offence, that you should be granted leniency on the basis of a dismissal of charge under section 10.


Traffic Offender Intervention Program (TOP or TOIP)

If you have been charged with either of these offences, the court may look favourably upon you for completing the Traffic Offender Intervention Program. This course aims to provide a greater understanding of the consequences of drink driving and traffic offences, including failing to submit to a breath test.

More information about Traffic Offender Intervention Program


Interlock program

If you have been charged with the offence of refuse breath test, you must participate in the Interlock program. Once your licence disqualification period is up, an interlock device will be fitted to your vehicle to prevent you from driving with alcohol in your system.

More information about Interlock program


What happens next with a Refuse Breath Test or Analysis charge?

It is crucial that you obtain legal advice promptly once you have been charged with Refuse Breath Test or Analysis.

We can outline the likely penalties, and advise you on the steps to take immediately after you are charged, which can assist in establishing potential defences.