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Refuse Or Fail Breath Analysis

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What is failing or refusing a breath or drug test

The offence of failing or refusing a breath or drug test is committed if you are legally required to undergo a such a test and either fail or refuse to do so. The penalties vary depending on the type of test you fail or refuse. It is a defence if you can prove that you were unable to complete the test due to medical reasons. However, the obligation to prove this rests with the defendant.

Refuse or fail RBT, oral fluid test, or sobriety assessment

If you refuse a breath test, oral fluid test, or sobriety assessment the penalty is $1100. While there is no specified period of disqualification the court can still impose a disqualification period its sees fit. If you refuse an RBT police can arrest you and request that you undergo a breath analysis. If you refuse an oral fluid test or sobriety assessment police can arrest you for the purposes of obtaining a blood sample.

Refuse or fail breath analysis

Refuse or fail breath test, oral fluid test, or sobriety assessment

Fine Disqualification
$1100 None specified but court can disqualify for a period they specify under section 204.

Refuse or fail breath analysis – first offence penalties

Fine Imprisonment Disqualification Interlock
$3300 18 months With interlock order: 9 months (can be reduced but not less than 6 months)

Exempted from interlock: 3 years – can be reduced but not less than 12 months.
2 year interlock condition on your licence

Refuse or fail breath analysis – second alcohol related offence in 5 years

Fine Imprisonment Disqualification Interlock
$5500 2 years With interlock order: 12 months (can be reduced but not less than 9 months)

Exempted from interlock: 5 years – can be reduced but not less than 2 years
4 year interlock condition on your licence

Refuse or fail breath analysis

A breath analysis is required if you return a positive breath test or refuse / fail a breath test. Breath analysis devices are located in police stations and also RBT buses that are sometimes used in large drink driving operations. If you fail or refuse a breath analysis the penalties are much more serious that refusing a breath test. You can face periods of disqualification and imprisonment.

Immediate licence suspension for refuse breath analysis

If you are issued with a court attendance for refuse breath analysis you will usually also receive an immediate police suspension notice. If you hold a NSW licence that means it is immediately suspended and you cannot drive. If you hold an international or interstate licence it means the authority to drive within NSW is suspended. The suspension is in place until your matter is finalised by a court.

If you are considering an appeal against an immediate police suspension you can read more here. Appeals against immediate police suspensions are less likely to be successful than other types of licence appeals. This is because the legal test is much higher. You need to prove to the court that there are exceptional circumstances why you should have your licence back. If your matter is going to be heard at court a successful appeal will only allow you to drive up until the matter is finalised at court. A court may still convict you and impose a period of disqualification following a successful appeal. If you do not appeal, then the court can take the period of suspension into account when setting a period of disqualification.

Court process for refuse or fail RBT or breath analysis

Unless a lawyer is appearing on your behalf you will need to attend court on the date listed on your court attendance notice. The first appearance at court for a refuse or fail charge is a mention date. It will most likely be in a busy list with many other people. Everyone’s court attendance notice says 9.30am so you may be there quite some time. At the mention date you can tell the court whether you would like to plead guilty, not guilty or seek an adjournment.

If you plead guilty you may be able to be sentenced on the same day. This is usually not advisable unless you are well prepared. If you plead not guilty you will be allocated a hearing date several weeks away. If you are considering pleading not guilty to a drink driving charge ensure you are aware of any defences. You can also ask the court to adjourn your matter for a short time (usually two to four weeks) so that you can speak with a lawyer, obtain some references, and complete an approved traffic offenders program.

Interlock orders for refuse breath analysis

If you are convicted of refuse breath analysis you will serve an initial period of disqualification, followed by a period where you are subject to an interlock order. This means you can only drive a vehicle fitted with an interlock device. You can seek an exemption order however if this is granted you may be disqualified for a longer period of time.

Is refusing or failing an RBT or breath analysis a criminal offence

These offences are serious criminal offences and you will most likely receive a criminal conviction. A criminal conviction will appear on your criminal record and in criminal background checks. There are generally only two ways in which you can a avoid a criminal conviction. You can plead not guilty and have the matter dismissed if you are successful, or you can persuade the court to deal with the matter by finding you guilty but not recording a conviction.

Preparing for court

When determining your matter, the Magistrate will read the court attendance notice, police facts sheet, and any material you bring to court. They will also listen to anything that you or your lawyer wish to tell the court. These are called submissions. It is important to ensure that your matter is well prepared. In a busy court there is only limited time for each matter. You need to be able to draw the courts attention to all the relevant considerations quickly. References need to be formatted, addressed and drafted correctly. It is also important that you complete a traffic offenders program.

Why choose Astor Legal

Astor Legal are experts in traffic and criminal law. All of our lawyers are experienced in drink driving matters. Our firm was started by two former police prosecutors who not only handled dozens of these matters every day in court but also used to conduct breath tests and breath analysis tests themselves. We know the systems and processes. Our lawyers will work with you to prepare your matter and then represent you at court. Take advantage of our obligation free case assessment and find out how we can get the best outcome for your matter.