Refuse Breath / Blood Test in NSW

The Offence

Refuse Breath Test, Refuse Breath Analysis & Wilfully Alter Blood Alcohol Sections 16 & 18

Refuse Breath Test – s.16(1)(a)

The drink driving charges, refuse breath / blood test in NSW, comes about whether the driver of a motor vehicle refuses or fails to provide a sample of breath to the police when directed to do so. Generally, this offence will occur when a driver refuses or fails a road side breath test which occurs prior to police conducting a breath analysis.

The specific law reads as follows:

“Section 16 (1) A person must not, when required to do so by a police officer under this Part, refuse or fail: 

(a) to submit to a breath test under Division 2 in accordance with the officer’s directions”

Refuse Breath Analysis – s.16(1)(b)

These drink driving charges are more serious that refusing a breath test. It is committed by a person who is the driver of a motor vehicle and refuses or fails to provide a sufficient breath sample by way of a breath analysis. Generally, you will be offered 3 attempts to provide a sufficient sample and failure or refusal will result in this charge being issued. You are required to follow police directions to provide such a sample and it cannot be used as a defence to say that you wish to first seek legal advice.

The specific law reads as follows:

“Section 16 (1) A person must not, when required to do so by a police officer under this Part, refuse or fail: 

(b) to submit to a breath analysis under Division 2 in accordance with the officer’s directions”

Wilfully Alter Blood Concentration – s.18

These drink driving charges are when a person purposely consumes a substance in order to alter the level of blood alcohol in their breath or blood between the time of the event of driving and the time in which they are tested. For example a person would be charged under this law if they were involved in a car crash and during the time they were waiting for the police to arrive they wilfully consumed more alcohol. It is a law which has been put in place to prevent people from saying that at the time of the car crash they were sober and decided to consume alcohol after the crash when they were driving the vehicle.

The Penalty

An individual can expect a disqualification period of 6 months for a first offence of refusing a breath test.

Other refusal offences and penalties for subsequent matters are detailed below:

1ST MAJOR OFFENCE – DUI AND DRINK DRIVING PENALTIES

OffenceMaximum FineMaximum JailAutomatic disqualificationMinimum disqualification
Refuse Breath Test$1,100Nil6 monthsNil
Refuse Breath Analysis$3,30018 months3 years12 months
Wilfully Alter Blood Concentration$3,30018 months3 years12 months

2ND MAJOR OFFENCE – DRINK DRIVING& DUI PENALTIES

OffenceMaximum FineMaximum JailAutomatic disqualificationMinimum disqualification
Refuse Breath Test$1,100Nil2 years2 years
Refuse Breath Analysis$5,5002 years5 years2 years
Wilfully Alter Blood Concentration$5,5002 years5 years2 years

Can I Defend the Charge?

Unlike a drink driving charge, this charge has a mental element (mental element / conscious awareness). That must be proven which many people are not aware of how to defend. These are very complex matters to defend. With such a heavy penalty for a conviction, it is imperative you seek legal advice to understand whether procedure was followed in the provision of the requirement on you to give a sample of breath.

Some defences to a refusal charge include Improper or Unreasonable Requirement, Factual Dispute, Confusion or Misunderstanding, Reason of Substantial Character, Mental Capacity, or other Procedural Irregularities.

Inquire with us if you have been charged with this offence so we can assess whether a defence is available to you.