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Traffic Law » Drink Driving » Refuse or Fail Breath Analysis

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Refuse or Fail Breath Analysis

Police may ask you to take a breath test or analysis if you are driving a motor vehicle on a road, occupying the driver’s seat and attempting to start to a motor vehicle or supervising a learner driver on the road.

If you fail a breath test you will be most likely asked to take a breath analysis which often occurs at a Police Station. Both a breath test and analysis indicate the concentration of alcohol in a person’s breath or blood, however, the breath analysis is a more sophisticated device.

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Refusing a breath test or analysis

Under Schedule 3 of the Road Transport Act 2013 it is an offence to refuse a breath test or analysis or fail to submit to the test/analysis as directing by a police officer

Failing to comply with any request or signal to stop the vehicle

Under Schedule 3 of the Road Transport Act 2013 it is an offence to not comply with a request or signal from a police officer to the stop the vehicle for the purpose of conducting a breath analysis.

When are you not required to submit to a test or analysis?

Police cannot require you to submit to a test or analysis, if:

  • You have been admitted to hospital, unless your medical practitioner has been advised that police would like to conduct a test and analysis and they do not object to the test/analysis on the basis that it would not affect your care or treatment
  • You have sustained injuries that would make it dangerous to your medical condition to submit to the test/analysis
  • It has been 2 hours since you were driving a motor vehicle on a road, occupying the driver’s seat and attempting to start to a motor vehicle or supervising a learner driver on the road.
  • You are at home

Penalties

First Offence:

Maximum Penalty

Minimum

Licence Disqualification

Maximum Licence Disqualification

Minimum Interlock Orders

Breath Test

$1,100

Breath Analysis

$3,300 and/or imprisonment for 18 months

6 months

9 months

24 months

Second or subsequent offence:

Maximum Penalty

Minimum Disqualification

Maximum Disqualification

Minimum Interlock Orders

Breath Test

$1,100

Breath Analysis

$5,500 and/or imprisonment for 2 years

9 months

12 months

48 months

Failing to comply with any request or signal to stop the vehicle has a maximum penalty of $1,100.

For more information on interlock orders, click here.

What is a “second or subsequent offence”?

A second or subsequent offence means that the offender has either been convicted of a previous offence of refusing a breath test/analysis within the past 5 years, or another earlier “major offence”, for example drink driving, in the past 5 years.

Will I Lose My Licence?

Upon conviction, your licence will be disqualified. There is no discretion for the magistrate to impose a period of disqualification less than the minimum period.

The only way to avoid a disqualification after being found guilty, or pleading guilty, is if the court deals with your matter by way of non-conviction. As with any offence, even after a finding of guilt a court can still decide not to record a conviction.

Should the court convict and disqualify you, the disqualification will commence at the time of conviction unless the court orders that it begins on a later day specified by the court.

Will The Court Take Into Account My Need For A Licence?

Your need for a licence is a relevant factor in the sentencing process, and those who will suffer hardship should be in a position to provide evidence to the court proving that hardship. The court is also required to take into account the need to deter other members of the community from committing the same offence, and in many cases, the need to deter individual offenders from committing the same offence again.

Each offender will be sentenced in accordance with all of their relevant circumstances.

For detailed advice about your matter, contact one of our traffic law specialists for a free initial consultation.

Will I Get Community Service Order?

A Community Service Order (CSO) is not always appropriate or attainable even if an offender has no prior criminal history. This is because a magistrate is required to take into account the following factors when considering sentencing an offender under CSO:

  • The person’s character, antecedents, age, health and mental condition;
  • The trivial nature of the offence;
  • The extenuating circumstances in which the offence was committed; and
  • Any other matter that the court thinks proper to consider.

However, it is important to note that this list is not exhaustive, and simply ticking each box will not guarantee an offender receives a CSO.

For FREE initial advice about the prospects of your matter, contact one of our criminal law specialists.

For the full range of penalties that can be imposed, see our Sentencing Options page.