Refuse breath test / sample

Refusing a Breath Test or Sample in New South Wales

In New South Wales (NSW), refusing to submit to a breath test, breath analysis, or other legally required sample is a serious criminal offence. These requirements are enforced under the Road Transport Act 2013 (NSW) to uphold road safety by enabling police to detect and deter drink and drug driving. A refusal to comply is treated as seriously as a high-range drink driving offence and carries significant penalties, including fines, licence disqualification, and potential imprisonment.

Legal Framework

The offence of refusing a breath test or analysis is governed by Part 2, Division 2 of the Road Transport Act 2013 (NSW). The key provisions include:

  • Section 14 – Refusing to undergo a breath test

  • Section 16 – Refusing to submit to a breath analysis

  • Section 18 – Refusing or failing to provide oral fluid or blood samples when required

These laws are designed to ensure that drivers cannot avoid detection by simply refusing to participate in the testing process. Refusal is prosecuted on the basis that it undermines the enforcement of safe driving laws.

Types of Testing and Legal Obligations

There are three main types of tests that drivers in NSW may be lawfully required to undertake:

  1. Roadside Breath Test (RBT): A preliminary screening test for alcohol using a handheld breathalyser. Refusal to undergo this test when lawfully required is an offence.

  2. Breath Analysis: If a driver returns a positive roadside test, they may be required to undergo a more accurate breath analysis at a police station or mobile unit. Refusal to undergo this analysis is a more serious offence.

  3. Oral Fluid, Urine, or Blood Sample: If police suspect drug use or the driver is involved in an accident, they may request a sample of oral fluid, blood, or urine. Refusing or failing to comply without a reasonable excuse is also an offence.

When Can Police Request a Test?

Under the Road Transport Act 2013 (NSW), police may require a breath or drug test if:

  • You are driving or attempting to drive a motor vehicle

  • You have been involved in a traffic accident

  • You are in control of a vehicle (e.g., seated in the driver’s seat with the keys)

  • Police reasonably suspect you have committed a driving offence

These powers apply on public roads and in public places such as car parks. Refusing to comply without lawful excuse is a criminal offence.

Penalties for Refusing a Test or Sample

Refusing a breath or drug test carries penalties equivalent to the most serious drink or drug driving offences. The penalties increase depending on whether it is a first or subsequent offence.

For Refusing Breath Analysis (under Section 16):

  • First offence:

    • Maximum fine of $3,300

    • Automatic licence disqualification of 6 months (court can vary)

    • Maximum imprisonment of 18 months

  • Second or subsequent offence:

    • Maximum fine of $5,500

    • Automatic disqualification of 2 years (minimum 12 months)

    • Maximum imprisonment of 2 years

For Refusing Oral Fluid or Blood Test (under Section 18):

  • Penalties are similar, especially if police suspect recent use of illicit substances.

  • The court treats the refusal as an attempt to conceal guilt and may impose harsher penalties.

Aggravating Circumstances

Courts will view certain factors as aggravating when sentencing for refusal offences, including:

  • Being involved in a serious accident or injury

  • Having a prior history of drink or drug driving

  • Evidence of erratic or dangerous driving behaviour

  • Refusing multiple forms of testing

These factors can lead to longer periods of licence disqualification and, in some cases, imprisonment.

Defences to Refusal Charges

While refusal offences are serious, there may be defences or reasonable excuses available in some circumstances. These may include:

  • Medical reasons: The driver had a legitimate medical condition that prevented them from physically performing the test.

  • Unlawful police procedure: The test was requested in circumstances not permitted by law, such as outside the allowable time limit or without proper explanation.

  • Language barrier or misunderstanding: If the driver did not understand the request due to language difficulties or cognitive impairment.

  • Lack of reasonable opportunity: For example, if the driver was unconscious or otherwise incapacitated.

It is important to note that simply being afraid of the outcome or choosing not to cooperate is not a lawful excuse.

Conclusion

Refusing a breath or drug test in NSW is a serious criminal offence that carries penalties similar to high-range drink or drug driving. The law presumes that refusal indicates an attempt to avoid detection and is dealt with accordingly. Under the Road Transport Act 2013 (NSW), individuals found guilty may face fines, licence disqualification, and even imprisonment.

If you are charged with refusing a breath or drug test, it is essential to seek legal advice. An experienced traffic lawyer can assess the circumstances of your case, advise you on your rights, and help you present any valid defence or mitigating factors in court.

References

  • Road Transport Act 2013 (NSW)

    • Section 14 – Refusal to undergo breath test

    • Section 16 – Refusal to submit to breath analysis

    • Section 18 – Refusal to provide oral fluid, urine, or blood sample

  • Criminal Procedure Act 1986 (NSW) – Procedures for summary offences and Local Court proceedings