Refuse or Fail to Submit to Breath Test

The offence of refuse to submit to breath test is contained in clause 16(1)(a), Schedule 3 of the Road Transport Act 2013..

It is an offence to fail to comply with these requests without a lawful excuse

The maximum penalty for a first offence is a fine of 10 penalty units.

There is no mandatory disqualification period, but the Court still has the discretion to disqualify your licence if they deem fit.

What is a refuse/fail breath test offence?

The offence of driving with refuse/fail breath test offence is contained in clause 16(1)(a) of Schedule 3 of the Road Transport Act 2013 which states:

• A person must not, when required to do so by a police officer under this Part, refuse or fail—

(a) to submit to a breath test under Division 2 in accordance with the officer’s direction

The following acts could constitute an offence of refuse/fail breath test:

• Refusing to complete the breath test;
• Trying to, but failing to provide a sufficient reading to complete a breath test;
• Pretending to blow but not really blowing into the instrument to do the test.

What must be proven?

For a person to be found guilty of refuse/fail breath test the prosecution must prove each of the following matters beyond a reasonable doubt:

• That a police officer required you to submit to a breath test;
• Your refused, or failed to do so.

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

Which Court Will Hear the Matter?

This offence is summary offence, which means that it will be finalised in the Local Court of New South Wales.

Possible Defences to refuse/fail breath test

There is a legislative defence available to this charge, contained in clause 16(2) of the Schedule 3 of the Road Transport Act 2013. This defence requires that the defendant proves to the court’s satisfaction that the defendant was unable on medical grounds, at the time the defendant was required to do so, to submit to the test, analysis or assessment concerned.

For advice or representation in any legal matter, please contact Armstrong Legal.

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