Refusing to submit to a roadside breath test or a breath analysis at the police station is a criminal offence in NSW and these offences carry harsh penalties.

 

When can police request a breath test?

In NSW, police will routinely request a breath test after any traffic violation or accident. They also have the power to randomly stop vehicles and request the occupants to give a breath sample. The police can request a breath test of any person who was or is driving a motor vehicle on a road, road related area or was sitting in the driver’s seat with the ignition turned on.

If you are stopped by police and required to undertake a roadside breath test and refuse to do so, the maximum penalty is a $1,100 fine.

What happens if you fail a roadside breath test and then are required to undergo a breath analysis? Can you refuse this test?

According to the Roads Transport Act 2013, you are not allowed to refuse a breath analysis without reasonable excuse.

 

What is a breath analysis?

The Roads Transport Act 2013 defines this as a test carried out by a breath analyzing instrument for the purpose of ascertaining, by analysis of a person’s breath, the concentration of alcohol present in that person’s breath or blood. This is usually carried out after you fail a roadside test

 

What are the penalties for this offence?

The maximum penalties for this offence if this is your first major traffic offence is:

– $3,300 fine and/or 18 months imprisonment

– Minimum disqualification under interlock of 9 months

– Maximum disqualification under interlock of 12 months

– Mandatory interlock of 2 years

If this is your second major offence in 5 years the following penalties apply:

– $5,500 fine and/or 2 years imprisonment

– Minimum disqualification under interlock of 9 months

– Maximum disqualification under interlock of 12 months

– Mandatory interlock of 4 years

 

When are you able to legally refuse a breath analysis? What is a reasonable excuse?

It is not a defense to this offence that you refused a breath analysis because you wanted to seek legal advice.

There are instances that the offender may not be forced to submit a breath analysis even if the police has a reasonable ground to believe that the alcohol level present in the offender is beyond its limit.

A police officer cannot require you to under an analysis if:

– A person has been admitted to the hospital for medical treatment

– It appears to the officer that it would, by reason of injuries sustained by that person, be dangerous to the person’s medical condition to submit to the test, analysis, assessment or provide the sample

– They have not driven a vehicle for the last 2 hours

– The person is at home. The police committing the unlawful act of trying to perform a breath test after you have entered the place where you live will lead to the breath test analysis reading to be excluded from the hearing and so lead to the dismissal of the offence.