Can I Refuse a Breath Test?



A Police breath test can often be administered by the side of the road, requiring the driver to breathe or speak into a device that indicates the amount of alcohol in their blood. Refusing to cooperate may result in being charged with refusing a breath test. If you or someone you know is being charged with refusing a breath test, seek expert criminal advice here.



Suppose the driver submits the test and the reading is positive. In that case, they’ll be required to attend a police station for a further breath analysis providing the Police with a more accurate reading of their blood alcohol content. Refusing to attend the police station or providing a breath sample at the station may result in being charged with refusing a breath analysis.


According to the Roads Transport Act 2013, you are not allowed to refuse a breath analysis without a reasonable excuse. This includes if :


  • You were at home,
  • You were unable to provide a sample on medical grounds, or
  • It had been more than 2 hours since you were driving.

Refusing a breath analysis is more serious than refusing a breath test – for a first major traffic offence within five years, section 16 (1) (b), Schedule 3 of the Road Transport Act NSW details a maximum penalty of:


  • Three years’ automatic’ disqualification from driving, which can be reduced to a ‘minimum period of 12 months;
  • 18 months imprisonment; and
  • A $3,300 fine.

These are the same as drink driving penalties.


If you or someone you know is being charged with refusing a breath analysis, be sure to see expert criminal advice here.


When can Police request a breath test?


NSW police will routinely request a breath test after any traffic accident or violation, whereby they also have the power to randomly stop vehicles and request the occupants to give a breath sample. NSW Police can request a breath test of any person who was or is driving a motor vehicle or was sitting in the driver’s seat with the ignition on.


If a driver is stopped by Police and required to undertake a roadside breath test and refuse to do so, the maximum penalty is a $1,100 fine. Hence, it is advised that drivers do not refuse a breath test as it is unlawful to do so.


What is a Breathalyser test?


The Roads Transport Act 2013 defines this as a test carried out by a breath analysing instrument to ascertain, by analysis of a person’s breath, the concentration of alcohol present in that person’s breath or blood. This is usually carried out after you fail a roadside test.

Can you refuse a breath test?


Drivers are not allowed to refuse a breath test, and it is not a defence to the offence that you refused because you wanted to seek legal advice.


Whilst the result from a Police breath test is not admissible in Court, a positive indication is enough for Police to arrest a person for the purposes of a breath analysis, whereby the reading from the breath analysis machine is admissible in Court.

Refusing a roadside breath test comes with a maximum fine of $1,100.


If you are convicted of refusing a breath test or analysis, you will have this offence noted on your criminal record and have your licence disqualified.


The automatic disqualification period will apply unless the Court makes a specific order. The Court is allowed to disqualify your licence for any length of time within the minimum and maximum periods applicable.


You will also be required to participate in the alcohol interlock program, and an interlock device will be fitted to your car. This is an electronic breath-testing device that stops the car from starting unless the driver provides a zero-alcohol content sample.


These consequences can be avoided if the Court applies section 10 of the Crimes (Sentencing Procedure) Act 1999.

At the Lyons Law Group, we’re committed to helping you face any traffic offence. Contact the Lyons Law Group to retain an experienced defence lawyer in NSW today.


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