Can you refuse a breath test in NSW?

Can you refuse a breath test in NSW? Many drivers ask this question after being stopped by police. Some believe refusing a breath test will prevent police from proving they were over the legal alcohol limit. However, refusing to comply with police requirements can itself result in serious criminal offences and significant penalties.

If you have been charged with refusing a breath test, understanding your legal obligations and obtaining legal advice early is important before attending court.

An experienced ⁠Drink Driving Lawyer Sydney can explain your legal options and represent you throughout your matter.

What Is the Difference Between a Breath Test and a Breath Analysis?

A roadside breath test is the preliminary test conducted by police to determine whether alcohol may be present.

If the roadside test indicates alcohol, or police otherwise require it, you may be taken for a formal breath analysis using an approved instrument.

Failing or refusing either procedure may result in criminal charges depending on the circumstances.

Is It an Offence to Refuse a Breath Test?

Yes.

Under the Road Transport Act 2013 (NSW), motorists are generally required to comply with lawful directions from police to undergo breath testing and, where required, breath analysis.

Refusing without a lawful excuse may constitute a criminal offence carrying significant penalties.

Whether an offence has been committed depends on the particular facts of the case.

What Happens If I Refuse?

If police allege you refused to provide a breath sample, you will generally receive a Court Attendance Notice requiring you to appear before the Local Court.

Depending on the circumstances, police may also suspend your driver’s licence immediately.

To understand the court process after a traffic offence, read ⁠What Happens After a Drink Driving Charge in NSW?.

What Penalties Can Apply?

The penalties available depend on:

• the particular offence alleged;

• whether it is a first or subsequent offence;

• the applicable legislation;

• the circumstances of the case.

Depending on the matter, the court may impose:

• a fine;

• licence disqualification;

• participation in the Alcohol Interlock Program where applicable;

• a community-based sentence;

• imprisonment in more serious cases.

Will I Lose My Licence?

Many people charged with refusing a breath test are concerned about whether they can continue driving.

Licence consequences depend on the offence and the orders ultimately made by the court.

For more information, read ⁠Will I Lose My Licence for Drink Driving in NSW?.

Can I Defend the Charge?

Every case depends on its own facts.

Whether a defence is available depends on matters such as:

• whether police acted lawfully;

• whether the statutory procedures were followed;

• whether there was a lawful excuse for non-compliance;

• the evidence relied upon by the prosecution.

Legal advice should be obtained before deciding how to proceed.

Should I Plead Guilty?

Whether you should plead guilty depends on the circumstances of your case and the available evidence.

Before entering any plea, it is important to obtain legal advice and understand the prosecution case.

Read ⁠Should I Plead Guilty to Drink Driving in NSW? for more information.

Will I Receive a Criminal Record?

Whether a conviction is recorded depends on the offence, the applicable legislation and the sentence imposed by the court.

If avoiding a conviction is an important concern, our guide ⁠Can I Avoid a Criminal Record for Drink Driving in NSW? explains the factors that may be relevant.

How Can a Lawyer Help?

A charge for refusing a breath test can carry serious consequences for your licence and future.

A lawyer may assist by:

• reviewing the prosecution evidence;

• considering whether police complied with the required procedures;

• advising you about possible defences;

• preparing sentencing material where appropriate;

• representing you in court.

An experienced ⁠Drink Driving Lawyer Sydney can provide advice tailored to your circumstances.

Conclusion

Refusing a breath test in NSW is a serious offence that should not be taken lightly. Police have extensive powers to require motorists to submit to breath testing, and refusing to comply can result in significant penalties. Obtaining legal advice early can help you understand your rights and prepare your case before court.

If you have been charged with refusing a breath test in NSW, Michael Confos provides legal representation for clients throughout Sydney. Learn more about our ⁠Drink Driving Lawyer Sydney services and how we may assist.

Key Legislation

• Road Transport Act 2013 (NSW) – establishes police powers to require breath testing and creates offences for refusing lawful breath tests and breath analysis.

• Crimes (Sentencing Procedure) Act 1999 (NSW) – governs sentencing options available to the court if a person is found guilty.

Disclaimer

The information contained in this article is provided for general informational purposes only and does not constitute legal advice. It should not be relied upon as legal advice or as a substitute for obtaining legal advice tailored to your individual circumstances. Every criminal matter depends on its own facts and the applicable law. Reading this article does not create a solicitor-client relationship. Michael Confos is not your lawyer. You should obtain independent legal advice from a qualified Australian legal practitioner regarding your specific circumstances.