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Opera House

NEW SOUTH WALES OFFENCES

REFUSE BREATH/BLOOD TEST

  • 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”

  • 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”.

  • 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

Refusing a breath test can lead to significant penalties, including mandatory loss of license for periods ranging from six months for a first offence to potentially longer for subsequent offences, hefty fines, and even imprisonment depending on the severity and circumstances of the refusal. 

Can I Defend The Charge?

Refusing a breath test involves a mental element of conscious awareness that must be proven, making these charges complex to defend. Given the severe penalties for conviction, legal advice is crucial to evaluate procedural correctness in the breath sample request.

Defences may include improper request, factual disputes, confusion, significant reason, mental capacity, or procedural errors. If charged, contact us to explore potential defences.

Opera House

REFUSE BREATH/BLOOD TEST

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