Our Services  / Drink Driving

Refuse or Fail Breath Analysis

Some people try to avoid a drink or drug driving charge by refusing to take the test or pretending that they cannot provide the sample. This is not a good idea, because penalties for refusing or failing to provide a sample are the same as High Range drink driving.

If you’ve been charged with refusal or failure to provide a sample then you’re bound to have a lot of questions. Read on for an overview of refusing or failing breath analysis or feel free to contact us if you’d rather talk to a dedicated traffic lawyer for personalised advice.

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What if I have an excuse for not taking the test?

You may have a defence to the charge if:

  • You were at home,
  • You were unable to provide a sample on medical grounds, or
  • It had been more than 2 hours since you were driving.

Please contact us to discuss how these defences to refusing or failing to provide a sample might apply to you.

What happens if I plead guilty to refusal or failure of breath or blood analysis?

The Court will decide what (if any) penalty to impose.

Don’t worry that if you plead guilty the magistrate won’t hear your side of the story.

During the sentencing proceedings the magistrate will give your lawyer the chance to explain what happened, what type of person you are and the impact that the case and any penalty will have on you. The magistrate will consider all of those things when deciding what penalty to impose.

With the right preparation you can reduce the penalties that the magistrate would otherwise impose.

Read on for more about what to expect at your sentence hearing.

What are the penalties for refusing or failing to provide a sample?

Refusing to stop your car, or to supply a breath or oral fluid sample roadside carries a maximum fine of $1,100.  If you refuse the roadside test, the police will likely arrest you and require you to supply a sample for analysis.  Refusing or failing to supply this sample carries the following penalties:

Refuse/Fail – First offence

Section 10 dismissal

  • without conviction,
  • without a fine, and
  • without a disqualification period.
or

Conviction

  • with a fine of up to $3,300,
  • with a disqualification period of 6 to 9 months,
  • followed by participation in the interlock program for a minimum period of 24 months that can be increased as the Court sees fit,
  • with a Gaol term of up to 18 months.

Refuse/Fail PCA – Second or subsequent offence in 5 years

Section 10 dismissal

  • without conviction,
  • without a fine, and
  • without a disqualification period.
or

Conviction

  • with a fine of up to $5,500,
  • with a disqualification period of 9 to 12 months,
  • followed by participation in the interlock program for a minimum period of 4 years that can be increased as the Court sees fit,
  • with a Gaol term of up to 2 years.

The penalties for refusing or failing to supply a sample for analysis are some of the harshest that the Local Court can impose.

Ordinarily, a person will receive a criminal conviction, a fine and licence disqualification, followed by participation in the Alcohol Interlock Program.

The penalties become more serious if there are ‘aggravating factors’ present. An aggravating factor is something that makes the offence worse. For example: a crash, poor behaviour towards police, passengers in the car, or previous serious offences. 

Where there are aggravating factors the Court will usually consider penalties such a good behaviour bonds and community service and Gaol.

For an honest assessment of the likely penalty in your case please contact us.

What is the Alcohol Interlock Program for refusal or failure to submit to analysis?

 Drivers licenced under the Alcohol Interlock Program are required to have breathalysers installed in their cars. For the duration of their participation in the scheme they have to blow 0.00 before their cars will start.

Any person convicted of refusing or failing to provide a sample for analysis must participate in the Alcohol Interlock Program unless they are exempted by the Court.

The Court can only exempt a person if:

  • they don’t have access to a vehicle in which to install the breathalyser; or
  • they have a medical condition that prevents them from using the device.

Read on for more information about the Alcohol Interlock Program.

Can I get my licence back pending Court?

Usually the police suspend a driver’s licence immediately when they are charged with refusing or failing to provide a sample.

While it is possible to appeal against the immediate police suspension, it is very difficult to get your licence back pending your court date.

You can read more about appealing the immediate Police suspension here.

Can I get a section 10 for refusing or failing breath analysis?

It is rare to get a section 10 for refusal or failure to submit to analysis.

A section 10 is an order where the magistrate finds you guilty of the offence, but releases you without a criminal conviction or further punishment. The police licence suspension is also lifted.

Read on for more information about section 10.

Contact us for an honest assessment of the likely penalties in your case and to discuss whether yours might be one of the rare instances where a section 10 dismissal of your charge is appropriate.

Will I get a criminal record for Refuse or Fail Breath Analysis?

If you are convicted, you will receive a criminal conviction and criminal record.

There are two ways to avoid this:

  • Be found not guilty.
  • Be found guilty, but no conviction recorded (section 10).
What happens on my first court date?

Often there is not much time between now and your first court date. There is no need to be concerned about this, as the Court will normally allow you more time to prepare.

On the first court date, the magistrate will ask what you are planning to do with your case. You can do one of three things:

  • Enter a plea of ‘guilty’ and either ask that the magistrate give you a penalty that day or ask for more time to prepare.
  • Enter a plea of ‘not guilty’ and your matter will be adjourned to a later date for hearing.
  • Ask for an adjournment to get some legal advice.
Legislation

The offence of Refuse/Fail Breath/Blood analysis is contained in:

  • Clauses 16 and 17, Schedule 3 of the Road Transport Act 2013.

Ainsley Law

Sydney
Level 1, 299 Elizabeth Street
Sydney NSW 2000

Parramatta
Suite 19, 103 George Street
Parramatta NSW 2150

Hours

Monday 8:30am–5:30pm
Tuesday 8:30am–5:30pm
Wednesday 8:30am–5:30pm
Thursday 8:30am–5:30pm
Friday 8:30am–5:30pm
Saturday Closed
Sunday Closed

Contact us

0416 224 601

enquiries@ainsleylaw.com.au

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