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

In New South Wales, police have the power to require a driver to provide a breath test sample or oral fluid test sample. Requests for breath tests are commonly known as random breath tests (RBTs) and requests for oral fluid samples are commonly known as mobile drug tests (MDTs). Police can also require someone to undertake a sobriety assessment. If a driver refuses or otherwise fails to comply with a police officer’s direction to comply with a random breath test, mobile drug test or sobriety assessment, they may be charged with an offence. These offences are most often laid where a person has failed or otherwise refused to provide a sample at a roadside breath test or oral fluid sample. This article deals with the offence of refusing or failing to provide a breath test sample.


The offence of refusing or failing to submit to test, analysis or assessment is contained in section 16 Schedule 3 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. A breath analysis which is conducted at a police station or on a ‘booze bus’ using a machine.

A roadside breath test usually involves police directing a driver to blow into a device or counting to ten near a device. A breath test is used as a preliminary test to indicate whether a driver has alcohol in their system while driving. If it returns a positive result, police will then require the driver to submit to a secondary test (a breath analysis) to confirm their exact reading.

Why is this offence treated so seriously?

Police are required to establish all the elements of an offence beyond a reasonable doubt. They 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 traffic matters, the test result from the driver’s sample is usually the primary evidence used against them if they are charged with an offence. Accordingly, some drivers try to avoid being charged by refusing to provide a sample. Parliament introduced the offences relating to failing to provide a sample to deter drivers from doing this and to prevent a driver from escaping being charged because they fail to comply. The offences attract similar penalties to those of drink and drug driving.

Penalties for failing to provide breath test sample

The maximum penalty that applies for failing to provide a roadside breath test, oral fluid test or sobriety assessment is a fine of 10 penalty units. This is currently $1100.

Defences to failing to provide breath test sample

A driver has a legal defence to this offence if, when they are asked to submit to the test, analysis or assessment, they were unable to do so on medical grounds.

Furthermore, police are required to take these samples from a person who is driving or within a certain time after they have been driving. Police must not take a sample if more time has elapsed. For offences relating to random breath testing and random drug testing, police have two hours from the time of driving to acquire a sample. If police take a sample from a driver outside of the two-hour period, the evidence may be excluded on the basis it was not lawfully obtained.

Some other defences to refusing/failing to provide a breath test include that:

  • The person charged was not the driver of the vehicle;
  • The person charged was not driving on a road or road related area;
  • The person charged did not refuse or fail to comply with the request;
  • The person charged had a medical reason for refusing or failing to complete the test.

Will I get a Criminal Record for a Fail/Refuse to Provide Sample Offence?

A criminal conviction is likely for this offence, however it is not inevitable. All fail/refuse to provide sample offences are considered as serious offences.

It is possible to avoid a conviction for a Fail/Refuse to provide sample offence, 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 may 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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