Refusal or Failure to Provide Samples or Preventing Sample Taking


The offence of refusal or failure to provide samples or preventing sample taking is committed by a person who refuses or fails to provide an oral fluid sample, without reasonable excuse.

Following the recording of a criminal conviction the maximum penalty for a first offender is, a fine of 30 penalty units and automatic licence disqualification for 3 years.

The maximum penalty for a repeat offender following the recording of a criminal conviction within 5 years is imprisonment for 18 months, a fine of 50 penalty units and automatic licence disqualification for 5 years.

The Offence of Refusal or Failure to Provide Samples or Prevent Sample Taking:

The offence of refusal or failure to provide samples or preventing sample taking is set out in clause 17, Schedule 3 of the Road Transport Act 2013 which states:

A person must not, when required to do so by a police officer under this Part, refuse or fail:

  • to provide an oral fluid sample under Division 3 for an oral fluid analysis in accordance with the directions of the officer.

What is an “Oral Fluid Analysis”?

Clause 1, Schedule 3 of the Road Transport Act 2013 defines an oral fluid analysis:

  • Means a test carried out by an approved oral fluid analysing instrument for the purpose of ascertaining, by analysis of a person’s oral fluid, the presence of prescribed illicit drugs in that person’s oral fluid.

What is “an Approved Oral Fluid Analyzing Instrument”?

Clause 1, Schedule 3 of the Road Transport Act 2013 defines an approved oral fluid analysing instrument:

Means any instrument that:

  • is designed to ascertain, by analysis of a person’s oral fluid, the presence of any prescribed illicit drug in that person’s oral fluid, and
  • meets the standards prescribed by the statutory rules for such an instrument, and
  • is approved by the Governor by order published in the Gazette.

What is a “Prescribed Illicit Drug”?

Section 4 of the Road Transport Act 2013 defines prescribed illicit drug:

  • Marijuana (also known as delta-9-tetrahydrocannabinol);
  • Speed (also known as methylamphetamine);
  • Ecstasy (also known as 3,4-methylenedioxymethylamphetamine).

Is it Possible to Avoid a Criminal Record?

It may be possible to avoid a criminal record if you are afforded the leniency of a section 10 non conviction order.

Do I Need a Lawyer to Represent Me?

It is your choice whether to represent yourself or whether to have a solicitor represent you in Court. If you are worried about a criminal conviction or loss of licence, we would advise having a solicitor represent you. For someone who is unfamiliar with the Court system, having to navigate a drink driving charge can be daunting. Our solicitors specialise in these matters and will use their experience and expertise to lead you through the process to the best possible outcome.

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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