This article was written by Fernanda Dahlstrom - Content Editor - Brisbane

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

Refuse to Submit to Breath Test (ACT)


Refusing to submit to a breath test or provide an oral fluid sample is an offence under section 22 of the Road Transport Act 1977. This offence is punishable by a fine of up to 30 penalty units (currently $4,800.) Refusing to submit to a breath test is a serious offence as it can prevent police from establishing a person’s BAC and as a consequence, where the fault is likely to lie when an accident has occurred.

What must be proven for refusing to submit to breath test?

For a court to find a person guilty of this offence, the prosecution must prove beyond a reasonable doubt that that person was:

  1. Driving a motor vehicle on a road or road related area or was a driver instructor; and
  2. Refused or failed to provide a sample of breath or oral fluid, at the reasonable directions of a police officer.

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

Defence to refusing to submit to breath test

A person charged with refusing or failing to submit to a breath test can valid defend the charge by arguing that the failure was due to medical grounds.

Under the Road Transport Act, there are several other offences related to failing to submit to a breath test. These are outlined below.

Failing to stay for screening test

Section 22b of the Road Transport Act makes it an offence for a person to fail to remain at a place where alcohol or drug screening tests are being carried out after a police officer has required them to do so. This offence is punishable by a fine of 20 penalty units.

Persons who have been involved in accidents or culpable driving may be required to take part in alcohol screening tests or drug screening tests under various provisions of the Road Transport Act.

Refusing a blood test

Section 23 of the Act makes it an offence for a person to refuse to take part in a blood test after a police officer has required them to do so. This offence is punishable by a fine of up to 30 penalty units.

It is a defence to a charge if the person refused due to religious or other conscientious grounds or for medical reasons.

If you require legal advice or representation in relation to refusing to submit to a breath test or in any other legal matter, please contact Armstrong Legal.

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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