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Refusing or Failing to Provide a Breath Analysis Sample (NSW)

In New South Wales, police have the power to require a driver to provide a breath test sample or a breath analysis sample for the purpose of random alcohol testing. It is an offence to fail to comply with these requests without a lawful excuse. This article deals with the offence of failing to provide a breath analysis sample.

A breath analysis sample is the second test conducted by the police when they are breath testing a person. It is generally completed after a driver has done a roadside breath test and tested positive, in order to obtain a more accurate reading. This test requires a driver to blow into a machine and produces a blood alcohol content (BAC) reading.


The offence of failing to provide a breath analysis sample is contained in section 16 of the Road Transport Act 2013.

What is a breath test vs breath analysis?

A breath test is a test that is conducted roadside by police using a handheld device compared to a breath analysis which is conducted at a police station or on a ‘booze bus’ using a machine. A breath analysis is the test used by police to confirm the alcohol reading of a driver after a preliminary breath test has been taken roadside.

When providing a breath analysis, a driver is required to blow a sustained breath into the machine and must provide a sufficient sample within three attempts. Where a driver refuses to provide a breath sample for a breath analysis or provides an insufficient breath sample to produce a reading, they may be charged with the offence of refusing or failing to provide a breath analysis sample.

Why is the offence of failing to provide a breath analysis sample treated so seriously?

Police are required to establish all the elements of an offence against you beyond a reasonable doubt. Police are vested with broad powers to subject drivers to random testing in order to detect, charge and prosecute drivers who have alcohol and/or certain drugs in their system.

In drink driving matters, the test result from a driver’s sample is usually the primary evidence used against them. Some drivers try to avoid being charged with an offence by refusing to provide a sample. Parliament introduced the offences of failing or refusing to provide a sample to deter drivers from doing this and to prevent a driver from escaping responsibility because they failed to comply with testing.

These offences carry the same penalties as a high range PCA/drink driving offence, which speaks to how seriously the courts take them.


If a driver refuses or fails to provide a breath analysis sample the maximum penalty is a fine of 30 penalty units (currently $3,300.00) and/or imprisonment for 18 months (in the case of a first offence) or a fine of 50 penalty units(currently $5,500.00) and/or imprisonment for two years (in the case of a second or subsequent offence).

In situations where a driver has been convicted of an equivalent offence (which includes other drink and drug driving offences) within the past five years, they are considered to have committed the new offence as a second or subsequent offence.

Defences to failing to provide breath analysis sample

A driver has a defence available if when they are required to provide a breath analysis, they were unable to do so on medical grounds. A person may also defeat a charge if the police did not request the breath analysis sample within two hours of the accused being in control of a vehicle.

Police have the power to take these samples only when a person is driving or within two hours after the person was driving. If the police take a sample from a driver outside of this two-hour period, the evidence may be excluded on the basis that it was not lawfully obtained.

Some other defences to refusing or failing to provide a breath analysis sample include:

  • That the accused was not the driver of the vehicle,
  • That the accused was not driving on a road or road related area, and/or
  • That the accused did not refuse or fail to comply with the request or did so because of a medical condition.

Will I get a Criminal Record for Failing or Refusing to Provide Sample Offence?

A criminal conviction is very likely for this offence, however not inevitable. It is possible to avoid a conviction for failing or refusing to provide a breath analysis sample in limited circumstances.

If the court is convinced that it is appropriate not to convict a person, their matter may be dismissed under Section 10(1)(a) or with a Conditional Release Order without conviction under Section 9(1)(b) of the Crimes (Sentencing Procedure) Act 1999.

However, if a person has already received the benefit of a non-conviction order within the previous five years for a similar offence, they will not receive another non-conviction order.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Sophie Ogborne

This article was written by Sophie Ogborne

Sophie Ogborne has a Bachelor of Laws from University of Wollongong and a Graduate Diploma of Legal Practice from the College of Law. She was admitted to practice in New South Wales in 2020. Sophie has experience in criminal law, civil law, family law and in the criminal and equity divisions of the Supreme Court. Sophie now practices exclusively in...

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