Charged with refusing or failing to submit to a breath analysis.

The legislative source.

Schedule 3 of the Road Transport Act 2013 sets out the testing regime: roadside breath test, breath analysis at the police station, oral fluid testing, blood and urine sampling. Clause 16 makes a refusal or failure to comply with each step a separate offence.

The breath analysis at the station (clause 16(1)(b)) is treated by the legislation as the most serious of the refusal offences and carries the same maximum penalty, disqualification and interlock obligation as a high-range PCA conviction. Refusal of a roadside breath test (clause 16(1)(a)) carries a lesser penalty of 10 penalty units, no imprisonment.

Penalties and likely outcomes.

First offence (refuse / fail breath analysis at station).

Maximum penalty 30 penalty units ($3,300) and/or 18 months imprisonment. Automatic disqualification 3 years, minimum 12 months. Mandatory interlock order: initial disqualification 6 to 9 months, interlock period 24 months.

Second offence within 5 years.

Maximum penalty 50 penalty units ($5,500) and/or 2 years imprisonment. Automatic disqualification 5 years, minimum 2 years. Mandatory interlock period 48 months.

What the magistrates actually impose.

The sentence regularly mirrors the equivalent high-range PCA range. A first-offence refusal on a plea with a strong subjective case generally attracts a CRO with conviction, the reduced initial disqualification, and the interlock period. ICO is on the table for second offences and for aggravated circumstances (accident, evading police, dangerous driving in train).

Defences and arguments worth running.

Medical defence under clause 16(2).

The legislative defence requires the accused to prove on the balance of probabilities that they were medically unable to provide a breath sample at the time of the test. The classic factual matrix is chronic obstructive pulmonary disease or severe asthma. Medical evidence is required · a treating doctor's letter on letterhead, ideally a respiratory function test result. The defence is narrow but, on the right facts, decisive.

The two-hour rule.

A breath analysis cannot be required more than two hours after the driving event. Where the test was attempted outside the window, the offence is not made out.

The home rule.

Schedule 3 cl 2(1)(e) prohibits the requirement of a breath test at the person's home. Where the police came onto the person's residential property and required a breath analysis, the analysis can be challenged.

Procedural failure.

Where the police did not properly require the analysis, did not warn the accused of the consequences of refusal, or did not give the accused a reasonable opportunity to comply, the prosecution may not establish the elements.

What we do for clients facing this charge.

The first task is to get the police notebook entries, the breath analysis printout, and the body-worn camera footage of the request. Most refusal matters resolve on a careful reading of the BWC: the question is whether what occurred meets the statutory definition of a refusal or failure.

If a medical defence is realistic, we brief the treating doctor or a specialist for a written opinion. The medical defence is run rarely but, on the right facts, is a complete answer.

For matters that resolve on plea, the strategy is the same as for a high-range PCA: strong subjective case, TOIP and AOD intervention completion where appropriate, framing against the high-range PCA guideline judgment.

What we tell clients on the first call.

The practical detail below is not legal advice for your matter. It is the version of the conversation the firm typically has with a client charged with refusing to provide a breath analysis in the first hour.

What evidence police usually rely on.

The breath-analysis reading at the police station, the certificate of analysis, and the officer's witness statement. The fact sheet is the source the prosecutor reads from at sentence. Mistakes in the two-hour rule or the home rule sometimes show up in those papers.

What to bring to the first consultation.

• The Court Attendance Notice (or charge sheet) and any bail papers.
• Anything police gave you in writing — fact sheet, certificate of analysis, search warrant copy, property seizure record.
• A short written timeline of the day, in your own words.
• Your driver licence and a list of current driving record points; a written timeline of the time you started and stopped drinking, and the time of the test.

Common mistakes in the first twenty-four hours.

• Talking to anyone other than your lawyer about the matter. Friends, family, co-accused and social media are not privileged.
• Deleting messages, photographs, posts or browser history. The trail left by deletion is often more damaging than what was there.
• Contacting the complainant or any prosecution witness, even through a third party.
• Discussing what you drank with anyone other than your lawyer. The fact sheet will pull from anything the officer heard.

What not to say to police without advice.

You must give your name and address. You do not have to answer anything else, and in most cases you should not. The standard answer is: “I do not wish to answer questions. I want to speak to my lawyer.” Section 89 of the Evidence Act 1995 (NSW) protects silence; the narrow section 89A exception applies only on indictable matters and only where a special caution has been given in the presence of an Australian lawyer.

The timeline you can expect.

From charge to first court appearance is typically two to six weeks in the Local Court and longer where the matter is indictable. The brief of evidence is served by the prosecutor on a date set at the first mention. From service of the brief to first reply is typically twenty-eight days. Defended hearings and committals are then listed weeks or months out depending on the court list.

When an early plea may or may not be appropriate.

An early plea attracts a sentencing discount of up to twenty-five per cent if entered at the first available opportunity, but it locks in a conviction. The firm does not advise an early plea before the brief is served and read. On a low or mid-range first-offence reading with strong character, a section 10 application is the realistic best outcome on the facts on the facts; an early plea preserves the maximum discount. On a high-range reading or a second offence, the section 10 path is narrow and the case for holding the plea is stronger.

Court-specific notes.

If the matter is listed at the Downing Centre, Parramatta, Penrith, Burwood, Manly, Newtown, Waverley, Hornsby or Sutherland Local Court, the firm appears in person. Wollongong Local Court matters are run from the firm's Wollongong office. ACT Magistrates Court and ACT Supreme Court matters are run from chambers; the firm appears in person at all ACT mentions.

Recent outcomes · refuse breath analysis matters.

Anonymised outcomes from the firm's matter set. Names, dates beyond the year, and identifying details have been altered or omitted to preserve client confidentiality. Each result was determined on the particular facts and is not a guarantee of any future outcome.

Frequently asked.