Refusal or Failure

The offence of refuse to submit to breath test, analysis or assessment is committed by a person who refuses or fails to provide an oral fluid test or a sobriety assessment, without reasonable excuse. Following the recording of a criminal conviction the maximum penalty for a first offender is a fine of 10 penalty units.

The Offence of Refuse to Submit Breath Test

The offence of refusal or failure to submit to test, analysis or assessment is set out in clause 16, 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 submit to an oral fluid test under Division 3 in accordance with the officer’s directions, or
  • to submit to a sobriety assessment under Division 5 in accordance with the officer’s directions.

What is an “Oral Fluid Test”?

Clause 1, Schedule 3 of the Road Transport Act 2013 defines an oral fluid analysis as a test carried out by an approved oral fluid testing device for the purpose of ascertaining, whether any prescribed illicit drugs are present in that person’s oral fluid.

What is an Approved Oral Fluid Testing Device?

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

  • is designed to indicate the presence of any prescribed illicit drug in a person’s oral fluid, and
  • meets the standards prescribed by the statutory rules for such a device, 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 for a Presence of Prescribed Illicit Drug in Person’s Oral Fluid, Blood or Urine Charge?

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.


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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