Refusing Breath Test Lawyers Sydney
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Expert Defence for Refusing a Breath Test
Facing a charge for refusing or failing to undergo a roadside breath test in NSW is a serious offence that can put your licence, your job, and your future at risk from significant penalties.
At Daoud Legal: Sydney Criminal Defence & Traffic Lawyers, our specialist traffic lawyers are dedicated to achieving the best possible outcome, whether that’s having the charge withdrawn, or persuading the court to grant a non-conviction order to protect your licence and record.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 for Refusing a Breath Test
- Challenging an Immediate Licence Suspension
- Avoiding Escalation to a Breath Analysis Refusal
- Potential Defences to the Charge
- Avoiding a Conviction for Failing a Breath Test
Understanding The Offence: Roadside 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, and refusing to comply with either carries its own specific consequences.
A police officer in NSW can require any driver to undergo a roadside breath test to check for the presence of alcohol. If you refuse to provide a breath sample for this initial screening, you can be charged with an offence. If the roadside test is positive for alcohol, or if you refuse the test, police will typically arrest you and take you to a police station or mobile RBT bus for a breath analysis.
Refusing a roadside breath test is a specific offence under the Road Transport Act 2013 (NSW) that carries a significant fine. It is treated differently from the more serious offence of refusing a subsequent breath analysis, which has far graver penalties, including a lengthy licence disqualification equivalent to a High Range PCA drink driving offence. Understanding exactly what you have been charged with is the first critical step in your defense.
Penalties for Refusing a Breath Test in NSW
Penalty for Refusing a Roadside Breath Test
This offence applies when you refuse or fail to provide a sufficient breath sample for the preliminary test conducted by police on the roadside.
- Maximum Penalty:Â A fine of up to $1,100.
- Licence Disqualification:Â While there is no automatic licence disqualification for this specific offence, the court has the discretion to impose one.
Penalties for Refusing a Breath Analysis
If you are charged with refusing or failing to provide a sufficient sample for a breath analysis, the consequences are severe. As this is considered a major offence, the penalties escalate significantly, especially if it is not your first drink driving offence within the last 5 years.
For a First Offence:
| Maximum Fine | Maximum Imprisonment | Automatic Licence Disqualification | Minimum Licence Disqualification | Mandatory Interlock Period |
|---|---|---|---|---|
| $3,300 | 18 months | 3 years | 12 months | 24 months |
For a Second or Subsequent Offence in 5 Years:
| Maximum Fine | Maximum Imprisonment | Automatic Licence Disqualification | Minimum Licence Disqualification | Mandatory Interlock Period |
|---|---|---|---|---|
| $5,500 | 2 years | 5 years | 2 years | 48 months |
Pleading 'Not Guilty' to a Refusal Offence
If you intend to plead not guilty, the prosecution must prove every element of the offence beyond a reasonable doubt. At Daoud Legal: Sydney Criminal Defence & Traffic Lawyers, we will meticulously examine the evidence and provide expert legal advice on whether a defence is available to you.
Under the Road Transport Act 2013 (NSW), a valid legal defence may be available in specific circumstances. These can include:
- You had a valid medical reason:Â You may have a defence if you were physically unable to provide a sufficient breath sample due to a medical condition, such as asthma. This must be proven with evidence from a medical professional.
- The police request was unlawful:Â Police power is not unlimited. A test may be unlawful if it was conducted more than two hours after you drove, or if you were on your own residential property at the time of the request.
- You were not the driver:Â The prosecution must prove you were the person driving the vehicle.
A successful defence results in the charge being dismissed, meaning 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 present the strongest possible case in mitigation to minimise the impact on your licence and record.
Our criminal law experts will guide you through preparing a compelling case by:
- Guiding you through the Traffic Offenders Intervention Program (TOIP):Â Completing this program demonstrates your commitment to understanding road safety and is viewed favourably by the court.
- Gathering powerful character references:Â We help you obtain references from employers, family, and community members that speak to your good character.
- Arguing for a non-conviction order:Â We will expertly argue for a section 10 dismissal or a Conditional Release Order, highlighting all mitigating factors and explaining why you deserve a second chance. A successful argument means you avoid a criminal record and licence disqualification.
Challenging an Immediate Licence Suspension
When you are charged with refusing a breath test in NSW, police have the power to suspend your licence on the spot. This immediate suspension can last for months until your case is finalised in court, creating significant hardship for your work, family, and personal life. You are not permitted to drive during this period.
However, you do not have to simply accept the suspension. It is possible to appeal the immediate police suspension in court. To be successful, you must persuade a magistrate that there are exceptional circumstances why you need your licence back. This is a high threshold to meet and requires a carefully prepared case. Our lawyers can provide the expert legal advice needed to give you the best chance of getting back on the road sooner.
Can You Have a Valid Reason to Refuse a Breath Test?
While the law requires you to comply with a request to provide a breath sample, there are limited circumstances where you may have a valid defence for refusing.
It is critical to understand that simply disagreeing with the police or wanting to get legal advice first are not considered valid reasons to refuse a breath test in NSW.
The Road Transport Act 2013 (NSW) recognises specific defences. The most common is being unable to provide a sample on medical grounds, for example, due to a severe respiratory condition like asthma.
This must be supported by strong medical evidence. Another defence may exist if the police officer’s request was unlawful, such as if it was made more than two hours after you were driving or if you were on your own private property. Proving such a defense requires expert legal argument, and our lawyers can provide the advice you need.
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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 test. Our focus is on achieving charge withdrawals, securing 'not guilty' verdicts, and protecting our clients from the automatic licence disqualification and a criminal record.
EXPERT DRUG DRIVING LAWYERS
Refusing a breath test is a serious offence with penalties equivalent to High Range PCA. Our senior lawyers have over 40 years of combined experience exclusively in criminal and traffic law, giving us a critical advantage in navigating the complexities of the Road Transport Act 2013 (NSW).
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A charge for refusing a breath test can result in an immediate licence suspension and severe penalties. We offer a free, urgent Strategy Session to assess your case and outline your defence. Our team is available 24/7 because immediate legal advice is vital.
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FAQs
What is the difference between a roadside breath test and a breath analysis?
A roadside breath test is a preliminary screening done by police on the road to detect the presence of alcohol. A breath analysis is a more accurate, evidentiary test conducted at a police station or mobile unit to determine your exact blood alcohol content (BAC), and its results can be used in court.
Is refusing a roadside breath test a criminal offence in NSW?
Yes, refusing or failing to provide a sufficient sample for a roadside breath test is a specific offence under the Road Transport Act 2013 (NSW) in New South Wales.
Do I have to give a breath sample if a police officer asks me to?
Yes. Under NSW law, police have the power to require a driver to submit to a breath test. Refusing to provide a breath sample when lawfully requested is an offence.
What happens immediately if I refuse a roadside breath test?
If you refuse a roadside breath test, you will likely be arrested and taken to a police station for a formal breath analysis. Police also have the power to issue an immediate licence suspension.
What is the penalty for refusing a roadside breath test?
The maximum penalty for refusing a preliminary roadside breath test is a fine of $1,100. While there is no automatic licence disqualification for this specific offence, the court has the discretion to impose one.
Will I lose my licence if I refuse a roadside breath test?
You can. Police can suspend your licence immediately. Even if they don’t, a court has the power to disqualify your licence upon conviction. Seeking expert legal advice is crucial to challenge any disqualification period.
Are the penalties for refusing a breath test the same as for a high range PCA?
This is a critical distinction. Refusing the initial roadside breath test carries a maximum fine of $1,100. However, refusing the subsequent breath analysis at the station is a much more serious offence, with penalties equivalent to a High Range PCA drink driving offence.
Can I go to jail for refusing a breath test?
While imprisonment is not a penalty for refusing the initial roadside test, refusing the subsequent breath analysis carries a maximum penalty of 18 months imprisonment for a first offence and 2 years for a second offence.
Will I get a criminal record for refusing a breath test?
If you are convicted of the offence, it will result in a criminal record. Our goal as your criminal law defence team is to help you avoid a conviction by arguing for a non-conviction order, such as a Section 10 dismissal.
Can I refuse a breath test if I haven't been drinking any alcohol?
No. The offence is not about your blood alcohol content; it is about the act of refusing to comply with a lawful request from a police officer to provide a breath sample.
What is a valid medical reason to refuse a breath test?
A genuine inability to provide a sufficient breath sample due to a medical condition, such as severe asthma, can be a valid defense. This must be proven with strong evidence from a doctor or medical expert.
Can police require a breath test in nsw if I am on my own property?
No. Police power is not unlimited. A key restriction is that they cannot require you to submit to a breath test if you are on your own residential property.
Is there a time limit for police to conduct a breath test?
Yes. Police cannot lawfully require you to submit to a breath test if more than two hours have passed since you were driving or operating the vehicle.
What happens if I plead ‘not guilty’ to refusing a breath test?
If you plead not guilty, the prosecution must prove every element of the offence beyond a reasonable doubt. Our lawyers will meticulously examine the evidence and police procedure to build the strongest possible defense for you.
What happens if I plead ‘guilty’ to refusing a breath test?
If you plead guilty, our focus shifts to achieving the most lenient sentence. We will prepare a compelling case in mitigation, guiding you through steps like the Traffic Offenders Intervention Program and gathering character references to persuade the court to grant a non-conviction order.
Can I appeal an immediate licence suspension?
Yes, you can appeal an immediate police suspension in court. However, you must prove to a magistrate that “exceptional circumstances” exist for why you need your licence back. This requires a carefully prepared case and expert legal advice.
How can a lawyer help if I'm charged with refusing a breath test?
An expert traffic lawyer can analyse the evidence for flaws, identify potential legal defences, challenge an immediate suspension, and represent you in court to argue for the best possible outcome, such as avoiding a conviction and disqualification.
Can you help me avoid a conviction for this offence?
Yes. Our primary goal is often to persuade the court to deal with the matter without recording a conviction by granting a Section 10 dismissal or a Conditional Release Order. This means you avoid a criminal record and licence disqualification.
What should I do if I've been charged with refusing to provide a breath sample?
You should seek expert legal advice from a specialist traffic lawyer immediately. The actions you take early on are critical. Contact Daoud Legal: Sydney Criminal Defence & Traffic Lawyers for a free strategy session to understand your rights and options.
Why choose Daoud Legal: Sydney Criminal Defence & Traffic Lawyers for my case?
Our firm is dedicated exclusively to criminal and traffic law in Sydney. With over 40 years of combined experience, a proven record of success, and 24/7 availability, we provide the expert defense and strategic legal advice needed to protect your licence and your future.
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