Refuse breath analysis

A person is guilty of a refuse breath analysis offence if that person was the driver of a motor vehicle on a public road, has undergone a breath test and returned a positive reading and when required to submit to breath analysis either refuses or fails to provide a sufficient sample for analysis, without reasonable excuse.

It is not a defence to refuse or fail a breath analysis on the basis that you wanted to seek legal advice before providing a sample for breath analysis.

Will I Get A Criminal Record For A Refuse Breath Analysis Charge?

Yes. This offence is considered very seriously by both the legislature and the Courts. The penalty provisions applicable to this offence are the same as the penalties applicable to a high range PCA offence. This is to avoid the situation where a person refuses a breath analysis on the basis that they will get a lesser penalty by refusing if they are aware that they are significantly over the legal limit. The penalties for this offence are severe and it is not uncommon, especially if a collision occurred, for some form of custodial sentence to be imposed, even for a first offender. In addition a criminal conviction will be recorded against your name.

What Does It Mean To Have A Criminal Conviction Recorded?

The consequences of having a criminal conviction recorded can be very serious. For example, many employers will conduct a background check on potential employees as part of the standard recruitment process including a police check. A police check will reveal if you have a criminal conviction recorded against your name. This may impact the employer’s decision in whether or not to employ you.

>In certain professions a criminal conviction may need to be reported to a regulatory body. For example, a member of the legal profession must report any criminal conviction to the relevant law society who will then make a determination as to whether that legal practitioner should be allowed to continue to practice law.

A criminal conviction may also inhibit future overseas travel. Most countries require visitors to obtain a visa prior to entering the country. As part of the visa process the applicant will more than likely need to disclose any criminal convictions. Depending on the policy of the particular country for which the visa is being sought, the visa may or may not be granted based on your criminal record.

Is It Possible That I Will Go To Jail/Gaol For My Refuse Breath Analysis Charge?

Yes. Refuse breath analysis, even for a first offender, can result in a custodial sentence. Whether or not a custodial sentence will be imposed depends on a number of factors, including the objective seriousness of the nature and circumstances of the offence together with consideration of your personal circumstances.

Do I Need A Lawyer To Represent Me For A Refuse Breath Analysis Charge?

It is your choice whether to represent yourself or whether to have a solicitor represent you in Court. In making this decision, however, you should consider the impact of any form of sentencing on both your life, and the lives of the people close to you. Refuse breath analysis is a serious criminal offence, and you will be sentenced accordingly. Further, it can be very daunting for a person with no prior contact with the criminal justice system to find themselves before a court for this sort of charge. Our solicitors specialise in these matters and will use their experience and expertise to lead you through the process to the best possible outcome.


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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