Refuse Breath Analysis

  printer friendly

Refuse Breath Analysis & Failure to Provide Sufficient Sample for Breath Analysis

These offences are committed by a person who was the driver of a motor vehicle on a public road and when required to submit to breath analysis either refuses or fails to provide a sufficient sample. It is not a defence to refuse breath analysis on the basis that you wanted to seek legal advice before providing a sample for breath analysis.

Penalties - Refuse Breath Analysis

Regardless of how bad your traffic record is the court has a discretion whether to record a conviction against you for the offence. If the court decides to convict you for the offence the court must disqualify you from driving for the minimum period set by the law. Similarly if a maximum period is set by law the court cannot impose a greater period.

If the court does not record a conviction against you, the court cannot disqualify you from driving. Section 10 of the Crimes (Sentencing Procedure) Act allows a court that finds a person guilty of an offence the discretion not to impose a conviction against you.

The automatic period of disqualification is the period of disqualification that you can expect to receive unless you can show the court reasons why your licence should not be disqualified for this period.

The following penalties apply once the court decides that it intents to record a conviction against you for an incident leading you to refuse breath analysis:

1st Major Traffic Offence

1. A maximum fine of $3,300.00
2. A maximum gaol term of 18 months
3. An unlimited maximum disqualification period
4.. A minimum disqualification period of 12 months
5. An automatic disqualification period of 3 years

2nd or subsequent major offence within 5 years

1. A maximum fine of $5,500.00
2. A maximum gaol term of 2 years
3. An unlimited maximum disqualification period
4.. A minimum disqualification period of 2 years
5. An automatic disqualification period of 5 years

Guideline Judgement

Recently, the New South Wales Court of Criminal Appeal handed down a guideline judgement that is to be followed by the courts of the state in respect to High Range PCA. Although this judgement does not strictly apply to these offences the penalty for these offences is the same as it is for High Range PCA. It is likely that the court may use the judgement as a guide when sentencing you. Set out below are the guidelines handed down by the court for this offence:

Firstly the court identified what a model or ordinary case would involve. The court then made guidelines in respect to the ordinary or model case and cases that were more serious than the ordinary or model case.

Model or Ordinary case

(1) An ordinary case of the offence of high range PCA is one where:

(i) the offender drove to avoid personal inconvenience or because the offender did not believe that he or she was sufficiently affected by alcohol;
(ii) the offender was detected by a random breath test;
(iii) the offender has prior good character;
(iv) the offender has nil, or a minor, traffic record;
(v) the offender's licence was suspended on detection;
(vi) the offender pleaded guilty;
(vii) there is little or no risk of re-offending;
(viii) the offender would be significantly inconvenienced by loss of licence.

(2) In an ordinary case of an offence of high range PCA:

(i) an order under s 10 of the Sentencing Act will rarely be appropriate;
(ii) a conviction cannot be avoided only because the offender has attended, or will attend, a driver's education or awareness course;
(iii) the automatic disqualification period will be appropriate unless there is a good reason to reduce the period of disqualification:
(iv) a good reason under (iii) may include: 
    (a) the nature of the offender's employment; 
    (b) the absence of any viable alternative transport;
    (c) sickness or infirmity of the offender or another person

(3) In an ordinary case of a second or subsequent high range PCA offence:
(i) an order under s 9 of the Sentencing Act will rarely be appropriate;
(ii) an order under s 10 of the Sentencing Act would very rarely be appropriate;
(iii) where the prior offence was a high range PCA, any sentence of less severity than a community service order would generally be inappropriate.

(4) The moral culpability of a high range PCA offender is increased by:

(i) the degree of intoxication above 0.15;
(ii) erratic or aggressive driving;
(iii) a collision between the vehicle and any other object;
(iv) competitive driving or showing off;
(v) the length of the journey at which others are exposed to risk;
(vi) the number of persons actually put at risk by the driving.

(5) In a case where the moral culpability of a high range PCA offender is increased:

(i) an order under s 9 or s 10 of the Crimes (Sentencing Procedure) Act would very rarely be appropriate;
(ii) where a number of factors of aggravation are present to a significant degree, a sentence of any less severity than imprisonment of some kind, including a suspended sentence, would generally be inappropriate.

(6) In a case where the moral culpability of the offender of a second or subsequent high range PCA offence is increased:

(i) a sentence of any less severity than imprisonment of some kind would generally be inappropriate;
(ii) where any number of aggravating factors are present to a significant degree or where the prior offence is a high range PCA offence, a sentence of less severity than full-time imprisonment would generally be inappropriate.

Possible defences

The law provides a defence to a prosecution for these offences if the defendant satisfies the court that the defendant was unable on medical grounds, at the time the defendant was required to do so, to submit to a breath analysis.

The police must also establish that you were the driver of a motor vehicle on a public road. There has been some instances where the police do not actually see the accused driving on a public road, but believe they were driving and subject the accused to breath analysis.

The police are not able to perform a breath test upon you once you have entered your usual place of abode. If the police do so, they are acting unlawfully and the subsequent breath analysis reading may be excluded leading to the dismissal of the offence.

Police have 2 hours in which to require you to undergo breath analysis from the time you were driving. It is not an offence if you refuse breath analysis outside this 2 hour period

	(02) 9261 4555
	Book an appointment