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.
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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.
This article was written by Angela Cooney
Angela Cooney is the National Practice Director of Criminal Law at Armstrong Legal and is an Accredited Criminal Law Specialist. Angela is a confident and formidable advocate for her clients. She commonly appears in very complex and serious matters but is able to assist clients with all kinds of criminal and traffic offences. Angela is an experienced court advocate having...
Common Questions about refuse/fail breath test:
A breath test is a test that is conducted roadside by police using a handheld device compared to a breath analysis which is conducted at a police station or on a ‘booze bus’ using a machine. A breath analysis is the test used by police to confirm the alcohol reading of a driver after a preliminary breath test has been taken roadside.
When providing a breath analysis, a driver is required to blow a sustained breath into the machine and must provide a sufficient sample within three attempts. Where a driver refuses to provide a breath sample for a breath analysis or provides an insufficient breath sample to produce a reading, they may be charged with the offence of refusing or failing to provide a breath analysis sample.
A criminal conviction is very likely for this offence, however not inevitable. It is possible to avoid a conviction for failing or refusing to provide a breath test sample in limited circumstances.
If the court is convinced that it is appropriate not to convict a person, their matter may be dismissed under Section 10(1)(a) or with a Conditional Release Order without conviction under Section 9(1)(b) of the Crimes (Sentencing Procedure) Act 1999.
However, if a person has already received the benefit of a non-conviction order within the previous five years for a similar offence, they will not receive another non-conviction order.
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 refuse/fail breath test might jeopardise your job or make it difficult to obtain visas for overseas travel.
Whilst there is no mandatory disqualification periods that apply to this charge, the Court still has the discretion to disqualify you from driving if they see fit.