Fail/Refuse to Provide Breath Sample


A person is guilty of the offence of refusing to provide a breath or oral fluid sample if the Police can prove beyond reasonable doubt that that person was:-

  1. A driver or driver trainer of a motor vehicle;
  2. On a road or road related area; and
  3. Refuses or fails to provide a sample of breath or oral fluid, at the reasonable directions of a police officer,

Alternatively, you may also be found guilty of this offence, if you return a positive preliminary test, but refuse to provide a breath or oral fluid sample for further analysis.

This offence is deemed to be a serious one by the legislature and by the Courts. This is indicated by the fact that the maximum penalties for this offence are the same as those that apply to a Level 4 PCA offence. This is to avoid the situation were a person would consider refusing a breath analysis on the basis that their reading is so high that they may potentially reduce their penalty.

The maximum penalty for this charge depends on whether a person is a first or a repeat offender. In either case, the starting point at sentencing would be for the Court to record a conviction, impose a fine and disqualify your licence for three years, for a first offence and five years for a second offence.

It is not uncommon, especially if there was a collision, that some form of custodial sentence would be imposed, even for a first offence.

WHERE TO NEXT?

In NSW, traffic offences are treated seriously. Therefore, it is important to get competent legal advice as early as possible, whether you have received a penalty notice, had your licence suspended or been charged with a serious offence. Our lawyers are highly experienced and understand the difficulties you face without a licence. We can guide you through the process while dealing with the various authorities related to your matter.

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