Refusing or Failing to Provide a Breath Test Sample (NSW)

In New South Wales, it is an offence to refuse to provide a breath test sample. The maximum penalty for this offence is a fine of $1,100.

There is no mandatory disqualification period but the Court still has the power to impose a discretionary disqualification period. 

What is Refusing or Failing to Provide a Breath Test Sample?

The offence of Refusing or Failing to Provide a Breath Test Sample is set out in Section 16(1)(a) Schedule 3 of the Road Transport Act 2013 (NSW) which states:

1. A person must not, when required to do so by a police officer under this part, refuse or fail –
   1. To submit a breath test under Division 2 in accordance with the officer’s directions.

The following acts might constitute Refusing or Failing to Provide a Breath Test Sample:

• You were pulled over by Police and the Police pulled out the breathalyser and asked you to count to 10 but you refused.

What must be proven?

For a person to be found guilty of Refusing or Failing to Provide a Breath Test Sample, the Prosecution must prove each of the following matters beyond a reasonable doubt:

• That you were driving the motor vehicle; and
• That you refused or failed to provide a breath test reasonably asked of you by Police.

If the Prosecution do not prove every single one of the above elements, you will be found not guilty.

What is a Motor Vehicle?

A motor vehicle is defined in the Road Transport Act 2013 (NSW) as a vehicle that meets:

• Any description of a vehicle on wheels (including a light rail vehicle) but not including any other vehicle used on a railway or tramway, or
• Any description of a tracked vehicle (such as a bulldozer), or any description of a vehicle that moves on revolving runners inside endless tracks, that is not used exclusively on a railway or tramway, or
• Any other description of vehicle prescribed by the statutory rules.

Which Court Will Hear the Matter?

This offence is a summary offence and will be finalised in the Local Court.

Possible Defences for Refusing or Failing to Provide a Breath Test Sample

The following defences may be available for Drive with Illicit Drug Present in System charge:

• Procedural Irregularities (e.g. the Police failed to follow legal procedures such as providing clear instructions and requests regarding the breath test; failed to adhere to timeframes).
• Medical grounds.
• That you were not driving on a road or road related area.

Common Questions about Refusing or Failing to Provide a Breath Test Sample

Will I receive a criminal conviction?

A conviction and criminal record for this offence is possible. 

A Court can impose any of the following penalties for a Refusing or Failing to Provide a Breath Test Sample charge in NSW charge:

• Gaol Sentence
• Intensive Corrections Order (ICO)
• Community Corrections Orders (CCO)
• Conditional Release Order with conviction (CRO)
• Fine
• Conditional Release Order without conviction (CRO)
• S10A
• Section 10 

The consequences of a conviction can be serious depending upon what you do for a living. Some jobs require you to have no criminal convictions and a conviction for this offence might jeopardise your job and personal relationships. Moreover, a conviction for an offence of this nature can completely rule out certain career paths such as teaching, driving jobs and a range of government employment options. 

Is it Possible to Avoid a Criminal Conviction for a Refusing or Failing to Provide a Breath Test Sample charge?

It is a possibility that you may avoid a criminal conviction for this offence, however, the circumstances of that happening are limited. If the Court is convinced that it is appropriate to deal with your matter by way of a Non-Conviction, you will receive a Section 10(1)(a) or with a Conditional Release Order without conviction under Section 9(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

What is the Difference Between a Breath Test and a Breath Analysis?

A breath test is a test that is conducted by Police roadside using a handheld device, commonly known as a ‘breathalyser’. A breath analysis is conducted at a Police station or on a ‘booze bus’ using a testing machine.

A roadside breath test usually involves Police directing a driver to blow into a device or counting to ten near a device. A breath test is used as a preliminary test to indicate whether a driver has alcohol in their system while driving. If it returns a positive result, police will then require the driver to submit to a secondary test (a breath analysis) to confirm their exact reading.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.