Failing to Undergo Breathe Analysis Lawyers Sydney
We provide exceptional legal guidance to people charged with refusing or failing to undergo a breath analysis, a serious offence with significant criminal penalties.
- Expert Breath Analysis Defence
- Challenge Licence Disqualification
- Avoid a Criminal Record
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Expert Defence To Protect Your Licence & Record
Facing a charge for refusing or failing to undergo a breath analysis in NSW is a serious criminal offence that can put your licence, your job, and your future at risk with significant penalties including a lengthy disqualification and a permanent criminal record.
At Daoud Legal: Sydney Criminal Defence & Traffic Lawyers, our specialist traffic lawyers fight to achieve the best possible outcome, whether that’s having the charge withdrawn, or persuading the court to grant a non-conviction order to protect your licence and record.
We provide specialist legal advice and representation for all matters related to this offence, including:
- Understanding the Refuse or Fail Offence
- Penalties & Disqualification Periods
- Challenging an Immediate Licence Suspension
- Mandatory Interlock Orders
- Potential Defences to the Charge
- Avoiding a Conviction for Failing a Breath Analysis
Understanding the Offence: Breath Test vs. Breath Analysis
In NSW, it is crucial to understand the difference between a preliminary roadside breath test and the more formal breath analysis. While both are used to detect the presence of alcohol, they are distinct legal procedures with different consequences for refusal.
A police officer can require any driver to undergo a roadside breath test. If this initial test is positive, or if you refuse to provide a breath sample, police will arrest you and take you to a police station or a mobile RBT bus for a breath analysis. This second step uses a more sophisticated device to determine your exact blood alcohol concentration.
The charge of ‘refuse or fail to undergo breath analysis’ relates specifically to this second, evidentiary test. It is a serious offence under the Road Transport Act 2013 (NSW) and is treated with the same severity as a High Range PCA charge, regardless of whether you had consumed any alcohol.
Penalties for Refusing a Breath Analysis in NSW
Understanding the potential penalties for an offence of refusing or failing to undergo a breath analysis in Sydney is critical. The consequences are severe, as this offence is treated with the same gravity as a High Range PCA drink driving charge under the Road Transport Act 2013 (NSW).
A conviction for failing or refusing to provide a breath sample is a serious criminal law matter. It results in a significant disqualification period, a mandatory interlock order, and a criminal record that can impact your employment and future. Our experienced traffic law experts are dedicated to helping you navigate the court process to minimise these penalties and protect your licence.
Penalties For a First Offence
If this is your first major traffic offence within a five-year period, the court can impose the following penalties:
| Maximum Fine | Maximum Imprisonment | Automatic Licence Disqualification | Minimum Licence Disqualification | Mandatory Interlock Period |
|---|---|---|---|---|
| $3,300 | 18 months | 3 years* | 12 months* | 24 months |
Penalties For a Second or Subsequent Offence
The penalties are far more severe for a second or subsequent offence of refusing a breath analysis.
| Maximum Fine | Maximum Imprisonment | Automatic Licence Disqualification | Minimum Licence Disqualification | Mandatory Interlock Period |
|---|---|---|---|---|
| $5,500 | 2 years | 5 years* | 2 years* | 48 months |
*The automatic and minimum disqualification periods apply if the court grants an interlock exemption. If a mandatory interlock order is made, shorter disqualification periods apply (a minimum of 6 months for a first offence and 9 months for a second or subsequent offence).
It Is Possible To Avoid A Conviction & Licence Disqualification
An expert defence from Daoud Legal: Sydney Criminal Defence & Traffic Lawyers can make all the difference. We can prepare a thorough and persuasive case to argue for a non-conviction order, such as a Section 10 dismissal or a Conditional Release Order. This allows the court to find you guilty but dismiss the charge without recording a criminal conviction, saving your licence and your record.
Successfully challenging the charge is another path we explore. For example, a legislative defence may be available if the defendant was unable on medical grounds to submit to a breath analysis. Our lawyers have the experience to identify and argue these points effectively to protect your rights.
Challenging an Immediate Licence Suspension
If you are charged with refusing or failing to undergo a breath analysis, NSW Police will issue an immediate licence suspension. This means your authority to drive is withdrawn on the spot, and the suspension remains in place until your case is finalised in court.
While it is possible to appeal this immediate suspension, the legal threshold is high. You must prove to the court that ‘exceptional circumstances’ exist to justify returning your licence pending the final hearing.
At Daoud Legal: Sydney Criminal Defence & Traffic Lawyers, we can provide urgent advice on whether you have grounds for a suspension appeal. If you don’t appeal, the time you have been suspended will be taken into account by the Magistrate when determining your final disqualification period.
Pleading 'Not Guilty' to a Refusal Offence
Pleading ‘not guilty’ means the prosecution must prove every element of the offence beyond a reasonable doubt. Our role is to build a strong defense by challenging the evidence and police procedure.
A legislative defence may be available in specific circumstances. Under the Road Transport Act 2013, you may be found not guilty if you can prove:
- You were unable on medical grounds to provide a breath sample. This requires expert evidence from a medical professional to satisfy the court.
- More than two hours had passed since you were driving the motor vehicle on a road.
- You were at your home at the time the police required you to submit to a breath analysis.
Our lawyers will meticulously examine the police brief to identify any flaws in the process that could lead to the charge being dismissed. A successful defense results in no criminal conviction, no fine, and no disqualification.
Pleading 'Guilty' to a Refusal Offence
If you choose to plead guilty, our focus shifts to securing the most lenient outcome possible. A well-prepared plea can significantly reduce the severity of the penalties and persuade a court to show leniency. The goal is to avoid the harshest penalties and, where possible, avoid a conviction altogether.
Our lawyers will help you prepare a compelling case by:
- Guiding you through the Traffic Offenders Intervention Program (TOIP): Completing this program demonstrates to the court that you understand the seriousness of the offence.
- Gathering strong character references: These help the court understand your personal circumstances and need for a licence.
- Presenting persuasive submissions:Â We will argue on your behalf, highlighting mitigating factors and explaining why you deserve a second chance.
Even with a guilty plea, it is sometimes possible to avoid a disqualification period and a criminal record if the court is persuaded to deal with the matter by way of a non-conviction order.
The Mandatory Interlock Order Explained
A conviction for refusing or failing a breath analysis results in a mandatory interlock order. This is a court order requiring you to fit an electronic breath testing device to your vehicle for a specified period after your initial disqualification ends.
The device prevents your vehicle from starting if it detects any alcohol in your breath. For a first offence, the minimum interlock order period is 24 months. For a second or subsequent offence, it is 48 months.
The court can only grant an exemption from an interlock order in very limited situations, such as if you have a medical condition preventing you from using the device or have no access to a vehicle. However, being granted an exemption will result in a much longer initial disqualification period.
Can You Avoid a Conviction for Failing to Provide a Breath Sample?
Yes, it is possible to avoid a conviction, but it is rare and requires expert legal representation. The only way to be found guilty of the offence of refusing a breath analysis but avoid a criminal record and licence disqualification is for the court to deal with your case under a non-conviction order.
This might include a Section 10 dismissal or a Conditional Release Order without conviction. To achieve this, we must present a powerful and persuasive case to the court, demonstrating why you are a person of good character and why the impacts of a conviction would be disproportionately harsh. At Daoud Legal: Sydney Criminal Defence & Traffic Lawyers, we have a proven track record of securing these outcomes for clients in Sydney facing serious traffic law charges.
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When you face a criminal or traffic charge, having a formidable legal team in your corner is not a luxury – it’s a necessity. At Daoud Legal: Sydney Criminal Defence & Traffic Lawyers, our reputation for relentless advocacy and strategic excellence is why we are consistently involved in significant, high-profile cases.
Our work, often highlighted by the media, demonstrates our commitment to every client. We apply the same level of tenacity and expert skill to your case, ensuring you feel protected and have a clear path forward.
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A Winning Record
We have a history of successfully defending clients charged with refusing a breath analysis. Our focus is on having the charge withdrawn, securing 'not guilty' verdicts, and protecting our clients from a disqualification period and criminal record.
EXPERT DRUG DRIVING LAWYERS
This is a serious traffic law offence with severe penalties. Our senior lawyers have over 40 years of combined experience exclusively in criminal and traffic law, giving you a critical advantage in navigating the complexities of the Road Transport Act 2013 (NSW).
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A charge for refusing a breath analysis results in an immediate licence suspension. We offer a free, urgent Strategy Session to assess your case and outline your defence. Our team is available 24/7 because immediate advice is crucial.
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FAQs
What is the offence of refusing or failing to undergo a breath analysis?
This is a serious offence under the Road Transport Act 2013 (NSW) where a person, after being required by police, refuses or fails to provide a sufficient breath sample for an evidentiary breath analysis machine, typically located at a police station or mobile testing bus.
Is refusing a breath analysis the same as refusing a roadside breath test?
No. A roadside breath test is a preliminary screening. A breath analysis is a more sophisticated, evidentiary test conducted after a positive roadside test or refusal. The offence of refusing a breath analysis carries much more severe penalties.
Is refusing a breath analysis a serious criminal offence in Sydney?
Yes. In NSW, this offence is treated with the same severity as a High Range PCA (drink driving) offence. A conviction results in a criminal record, significant fines, a lengthy licence disqualification, and a mandatory interlock order.
What are the penalties for a first offence of refusing a breath analysis?
For a first offence, the maximum penalties include a $3,300 fine, imprisonment for 18 months, a mandatory interlock order for 24 months, and a significant licence disqualification period.
What happens if it is my second or subsequent offence?
The penalties are much more severe. They increase to a maximum fine of $5,500, imprisonment for up to 2 years, a mandatory interlock order for 48 months, and a longer licence disqualification period.
Will my licence be suspended immediately?
Yes. If you are charged with refusing or failing to undergo a breath analysis, NSW Police can issue an immediate licence suspension, which remains in place until your matter is finalised by a court.
Can I appeal the immediate licence suspension?
You can appeal, but the legal test is very high. You must prove to the court that ‘exceptional circumstances’ exist to justify returning your licence before your final court date.
What is a mandatory interlock order?
It is a court order requiring you to install an approved alcohol breath testing device to your vehicle’s ignition after your disqualification period ends. The vehicle will not start unless you provide a zero-alcohol breath sample.
Can I get an exemption from the interlock order?
Exemptions are rare and only granted in very limited circumstances, such as having a medical condition that prevents you from using the device. If you are granted an exemption, the court will impose a much longer licence disqualification period.
Can I avoid a conviction for this offence?
It is possible but difficult. The only way to avoid a conviction and disqualification is to be found not guilty or for the court to deal with the matter via a non-conviction order, such as a Section 10 dismissal. This requires expert legal representation.
What are the main defences to a charge of refusing a breath analysis?
Potential defences under the Road Transport Act 2013 (NSW) include proving you were unable on medical grounds to provide the sample, that more than two hours had passed since you drove, or that you were at your home when the requirement was made.
What if I have a medical condition like asthma?
This can be a valid defence, but the defendant must prove to the court’s satisfaction that the medical condition made them unable to provide a sufficient breath sample. This usually requires strong evidence from a medical expert.
Can I refuse to provide a sample because I want to get legal advice first?
No. You are not entitled to delay or refuse the breath analysis to wait for legal advice. A refusal on these grounds will lead to you being charged with the offence.
What happens if I plead 'not guilty'?
The prosecution must prove every element of the offence beyond a reasonable doubt. Our role at Daoud Legal: Sydney Criminal Defence & Traffic Lawyers is to build a strong defense by challenging the police evidence and procedure to have the charge dismissed.
What happens if I plead 'guilty'?
Our focus shifts to preparing a persuasive plea in mitigation to secure the most lenient sentence possible. This involves gathering character references, completing the Traffic Offenders Intervention Program, and making strong submissions to the court to reduce the penalties.
How long will my licence be disqualified for?
If a mandatory interlock order is made for a first offence, the minimum disqualification period is 6 months. For a second or subsequent offence, it is 9 months. Without an interlock order, these disqualification periods are significantly longer.
Will I definitely go to jail for refusing a breath analysis?
While imprisonment is a possible penalty, particularly for a second or subsequent offence, it is not the most common outcome for a first offence. An experienced criminal law solicitor can make submissions to persuade the court to consider other penalties.
Does it matter if I hadn't been drinking any alcohol?
No. The offence is the refusal or failure to provide a breath sample when lawfully required. It does not depend on the concentration of alcohol in your system, and you can be charged even if you were completely sober.
How can a lawyer help me with this charge?
An expert traffic lawyer can analyse the evidence for flaws, identify potential defences, negotiate with the prosecution, and present a powerful case in court to either have the charge withdrawn or significantly minimise the penalties, protecting your licence and record.
Why should I choose Daoud Legal: Sydney Criminal Defence & Traffic Lawyers?
Our firm specialises exclusively in criminal and traffic law. With over 40 years of combined experience, we have a proven record of success in defending clients in Sydney against serious charges like refusing a breath analysis, helping them avoid a criminal conviction and disqualification.
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