In New South Wales, police have the power to require a driver to provide a breath test sample or a breath analysis sample for the purpose of random alcohol testing under clause 16(1)(b), Schedule 3 of the Road Transport Act 2013.

It is an offence to fail to comply with these requests without a lawful excuse. This article deals with the offence of failing to provide a breath analysis sample.

A breath analysis sample is the second test conducted by the police when they are breath testing a person. It is generally completed after a driver has done a roadside breath test and tested positive, in order to obtain a more accurate reading. This test requires a driver to blow into a machine and produces a blood alcohol content (BAC) reading.

This offence is treated very seriously by the courts, particularly where a person has had prior drink driving offences. A first refuse/fail breath analysis offence attracts a maximum fine of 30 penalty units and/or imprisonment for 18 months. A second or subsequent offence attracts a fine of up to 50 penalty units and/or two years imprisonment.

This offence is also subject to mandatory disqualification periods and interlock orders.

Disqualification Periods for refuse/fail breath analysis offences

Police have the power to issue an immediate licence suspension for a refuse/fail breath analysis offence. Usually, the Court will backdate your disqualification period to commence at the time that the police originally suspended you from driving.

The Road Transport Amendment (Mandatory Alcohol Interlock Program) Act 2014 imposes a mandatory disqualification period for a refuse/fail breath analysis offence, which varies depending on whether it is the offender’s first or second offence.

For first offences, the minimum disqualification period is six months with a maximum of nine months, where an interlock order is also made. Where an interlock exemption order is made, the automatic disqualification period is 3 years with a minimum period of 12 months.

For second or subsequent offenders, the minimum disqualification period is nine months, and the maximum is 12 months where an interlock order is also made. Where an interlock exemption order is made, there is an automatic disqualification period of five years which can be reduced to a minimum of two years.

Mandatory Interlock Orders for refuse/fail breath analysis offences

Mandatory interlock orders automatically apply to refuse/fail breath analysis offences.

Mandatory interlock orders require the driver to obtain and serve a period of time on an interlock licence after having completed their disqualification period. During this period, the person must install and maintain an interlock device their vehicle.

Unless a driver applies for and is granted an interlock exemption order, a mandatory interlock order will be automatically applied when they are convicted.

To receive an exemption from a mandatory interlock order, a person needs to satisfy Section 212 of the Road Transport Act 2013. This provision requires:

(a) That the person does not have access to a vehicle in which to install an interlock device, or

(b) That they have a diagnosed medical condition that prevents them from providing a sufficient breath sample and installing the device is not reasonably practical.

The Mandatory Interlock Order for a first refuse/fail breath analysis offence is 2 years.

The Mandatory Interlock Order for a second or subsequent refuse/fail breath analysis offence is 4 years.

What is a refuse/fail breath analysis offence?

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

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

(b) to submit to a breath analysis under Division 2 in accordance with the officer’s directions

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

• Refusing to complete the breath analysis test;
• Trying to, but failing to provide a sufficient reading to complete a breath analysis 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 analysis the prosecution must prove each of the following matters beyond a reasonable doubt:

• That a police officer required you to submit to a breath analysis;
• 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 analysis

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.

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