What Happens if You Refuse a Breath Test in NSW?

Refusing to provide a breath sample when lawfully required by police is a serious offence in New South Wales.

Many drivers mistakenly believe that refusing a roadside breath test will prevent police from proving they were over the legal alcohol limit. In reality, refusing a lawful breath test or breath analysis can result in criminal charges that often carry penalties comparable to, or even more severe than, some drink driving offences.

A refusal may lead to:

• a criminal conviction;

• a significant licence disqualification;

• substantial fines;

• participation in the Alcohol Interlock Program in some circumstances; and

• in more serious cases, a term of imprisonment.

If you have been charged after refusing a breath test, it is important to obtain legal advice as soon as possible. The circumstances surrounding the refusal, the procedure followed by police and the evidence available can all affect the outcome of your case.

For a broader overview of drink driving offences and sentencing in New South Wales, read our comprehensive guide to ⁠Drink Driving Lawyer Sydney.

Is Refusing a Breath Test a Criminal Offence?

Yes.

Where police have lawfully required you to provide a breath sample, refusing or failing to comply may itself constitute a criminal offence.

This surprises many motorists.

The offence is not based on your blood alcohol concentration. Instead, it is based on your failure to comply with a lawful police requirement.

In other words, even if you were ultimately under the legal alcohol limit, refusing a lawful breath test may still expose you to criminal liability.

That is why it is important to distinguish between:

• driving with an unlawful prescribed concentration of alcohol (PCA); and

• refusing to provide a breath sample or undergo breath analysis.

They are separate offences with different legal elements.

Why Do People Refuse?

People refuse breath testing for many different reasons.

Some believe refusing will make it harder for police to prove drink driving.

Others panic because they know they have consumed alcohol.

Some genuinely misunderstand their legal obligations.

Others believe they have a medical condition that prevents them from providing a sufficient breath sample.

Unfortunately, whatever the reason, refusing a lawful requirement can have very serious consequences.

Lawyer Insight

One of the most common misconceptions we hear is: “If they can’t get a reading, they can’t charge me.”

That is incorrect.

NSW law specifically creates offences for refusing lawful breath testing requirements. Refusing is not a loophole that allows someone to avoid prosecution. In many cases, it simply results in a different criminal charge.

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

These terms are often used interchangeably, but they refer to different stages of the police process.

A breath test usually refers to the preliminary roadside screening conducted using a handheld device.

A breath analysis is the evidentiary procedure, typically conducted at a police station or authorised testing location, using a breath analysis instrument.

Different statutory provisions apply to each process, and the circumstances of the alleged refusal may become important in court.

If you are unsure of the difference, our guide to ⁠Can Police Force You to Take a Breath Test in NSW? explains how roadside breath testing operates.

Can Police Physically Force You to Blow?

Generally, no.

Police cannot ordinarily force air from your lungs into a breath-testing device.

However, that does not mean you are free to refuse.

Instead, the legislation imposes criminal penalties for refusing to comply with a lawful direction.

Accordingly, while the obligation is not usually enforced through physical force, it is enforced through the criminal law.

What If You Pretend to Blow?

Some drivers attempt to avoid providing a sample by:

• pretending to blow into the device;

• deliberately stopping before enough air is provided;

• blowing around the mouthpiece; or

• otherwise preventing the machine from obtaining a valid sample.

Whether this amounts to a refusal depends on the facts and the evidence.

Police are experienced in administering breath tests and will generally record the circumstances surrounding any alleged failure to provide a sufficient sample.

Deliberately frustrating the testing process is unlikely to assist your case and may instead support an allegation that you intentionally refused to comply.

What If You Have a Genuine Medical Condition?

A genuine medical condition may sometimes affect your ability to provide a breath sample.

For example, certain respiratory conditions may make it difficult to produce sufficient breath for the testing device.

However, merely asserting that you suffer from asthma or another medical condition does not automatically excuse non-compliance.

If police accept that you are genuinely unable to provide a sample, they may exercise other powers available under the legislation, including requiring a blood sample in appropriate circumstances.

Whether a medical condition provides a defence will always depend on the evidence.

Practical Example

Imagine a driver with severe chronic respiratory disease who repeatedly attempts to provide a breath sample but is physically incapable of producing sufficient air despite genuine efforts.

Contrast that with a driver who repeatedly pretends to blow into the device without making any real attempt to provide a sample.

Although both may fail to produce a reading, the legal consequences may be very different because the court will examine why the sample was not obtained.

What Penalties Can Apply?

The penalties for refusing a lawful breath test or breath analysis depend on a range of factors, including:

• the specific offence charged;

• whether it is a first or subsequent offence;

• your traffic and criminal history;

• the circumstances surrounding the refusal; and

• the sentencing principles applied by the court.

Potential consequences include:

• criminal conviction;

• fines;

• licence disqualification;

• alcohol interlock orders in appropriate cases; and

• imprisonment for more serious offending.

The court will determine the appropriate penalty after considering all of the circumstances of the case.

For a detailed overview of sentencing, see our guide to ⁠Drink Driving Penalties in NSW.

The Legal Framework

Police powers relating to breath testing and offences involving refusal are primarily governed by the ⁠Road Transport Act 2013 (NSW).

The legislation authorises police to conduct roadside breath testing, require breath analysis in specified circumstances and prosecute drivers who refuse lawful requirements.

Understanding exactly which statutory provision applies is often an important part of preparing a defence.