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:

 

PenaltyFirst offenceSubsequent offence
Maximum fine$3,300$5,500
Maximum prison term18 months2 years
Minimum disqualification12 months2 years
Maximum disqualificationUnlimitedUnlimited
Automatic disqualification 3 years5 years
Immediate licence suspensionYesYes
Interlock orderYesYes

 

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.

 

Frequently Asked Questions

Where will the matter be heard?

Refusing breath test or analysis offences are heard at a Local Court before a magistrate.

How serious are the charges?

These charges are taken very seriously by the courts and the penalties can include prison time. Depending on whether you refused the breath test, or whether you were arrested and refused the breath analysis, the most common penalties range from a fine to imprisonment.

Will I lose my licence?

You will most likely lose your licence if charged with refusing a breath test/analysis. Your licence will be immediately suspended when you are charged, and the most likely outcome at court will be a criminal conviction, which will result in a licence disqualification.

When can I legally refuse a roadside breath test or analysis?

Police cannot require you to submit to a test or analysis if:

  • You are on your property at the time.
  • It has been more than two hours since you last drove, or attempted to drive a vehicle.
  • It would be dangerous for you to undertake a breath test or analysis due to injuries or medical concerns.
  • You have been admitted to hospital; unless your medical practitioner has been advised and does not object.

How can we help?

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