What is 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?

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:

First major offence within 5 years
Maximum fine $3,300
Minimum disqualification under Interlock 6 months
Maximum disqualification under Interlock 9 months
Interlock period 2 years
Maximum prison sentence 18 months
Second major offence within 5 years
Maximum fine $5,500
Minimum disqualification under Interlock 9 months
Maximum disqualification under Interlock  12 months
Interlock period 4 years
Maximum prison sentence 2 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 Refuse Breath Test charge against you?

The courts take a serious view of those charged with refuse breath test or refuse breath 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 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

How can Nyman Gibson miralis assist you?

At Nyman Gibson Miralis, our traffic lawyers can provide you with advice and act on your behalf to maximise your chances of successfully defending a charge of refuse breath test or breath analysis. We provide urgent criminal legal advice 24/7 for all drink driving offences. Our drink driving lawyers and accredited specialist solicitor are available now for your call.

We have offices in both Sydney and Parramatta CBDs, yet our reputation for excellence as drink driving lawyers sees us travel to all courts in NSW – **Courts that we attend**

Some of our drink driving solicitors in Sydney and Parramatta are lecturers at the Traffic Offender Intervention Program, and all of our driving offence lawyers practice exclusively in criminal law.

We will advise you of the potential penalties, as well as give you a realistic opinion as to the likely result when you go to court. Your first conference is free, and we will discuss with you the costs of legal representation.

Not only will our criminal lawyers do everything possible to get you the best result, to avoid disqualification if possible, and minimise the fines or sentence, we might even be able to assist you in avoiding a conviction with a Section 10!