Facing a request for a breathalyzer test in Sydney, NSW, can be a nerve-wracking experience, particularly when you’re unsure of your rights and the potential consequences. At Nicopoulos Sabbagh Lawyers Criminal Defence & Traffic Lawyers, we specialise in criminal law and traffic law, offering expert guidance to protect your rights and achieve the best possible outcome. As leading Sydney traffic lawyers and criminal defence lawyers, we understand the complexities of NSW traffic laws and are here to help you navigate them.
In this comprehensive guide, we explore whether you can refuse a breathalyzer test in Sydney, NSW, the legal implications of refusal, potential defences, and steps to take if charged. Written to reflect the most current NSW laws as of June 21, 2025, this article is designed to be engaging, informative, and compliant with solicitor rules and ethical standards. For personalised legal advice, contact us at info@nslaw.net.au, 0427 101 499, or 02 9793 7016, or visit www.nslaw.net.au.
Understanding Breathalyzer Tests in NSW
In New South Wales, breathalyzer tests are a critical tool used by police to enforce drink driving laws under the Road Transport Act 2013. These tests measure your blood alcohol concentration (BAC) to determine if you’re driving under the influence of alcohol. The process typically involves two stages:
- Roadside Breath Test (Preliminary Breath Test):
- Conducted during a Random Breath Test (RBT) or after a traffic stop.
- Uses a handheld device to provide an immediate indication of alcohol presence.
- If positive or if you refuse, police may arrest you for further testing.
- Breath Analysis:
- Conducted at a police station or mobile testing unit using a more accurate device.
- Results are admissible in court as evidence for Prescribed Concentration of Alcohol (PCA) offences.
Legal BAC Limits in NSW
Under section 110 of the Road Transport Act 2013, the legal BAC limits are:
- 0.00: For learner, provisional (P1/P2), and certain commercial drivers.
- 0.05: For full licence holders.
- Penalties Increase with BAC:
- Low-range PCA (0.05–0.079): Fine up to $2,200, up to 3 months imprisonment (first offence).
- Mid-range PCA (0.08–0.149): Fine up to $3,300, up to 9 months imprisonment, automatic licence disqualification for 6 months.
- High-range PCA (0.15 or higher): Fine up to $5,500, up to 18 months imprisonment, automatic disqualification for 3 years.
Refusing a breathalyzer test can lead to serious charges, as outlined below.
Can You Refuse a Breathalyzer Test in NSW?
In NSW, refusing a breathalyzer test is generally not a viable option, as police have significant powers under the Road Transport Act 2013 to enforce testing. Specifically:
- Section 29 of Schedule 3 of the Road Transport Act 2013 empowers police to require a driver to submit to a roadside breath test if they suspect the driver has consumed alcohol or was involved in an accident.
- Section 15 of Schedule 3 mandates that a driver arrested for a positive roadside test or refusal must undergo a breath analysis at a police station or mobile unit.
Legal Obligation to Comply
- You are legally required to provide a breath sample when requested by police.
- Refusal to submit to either a roadside breath test or a subsequent breath analysis is an offence under section 29(4) and section 15(4) of Schedule 3, respectively.
Consequences of Refusing a Breathalyzer Test
Refusing a breathalyzer test in NSW is treated as a serious offence, often carrying penalties equivalent to or harsher than a high-range PCA conviction. The penalties for refusing a breath test or analysis include:
- First Offence:
- Fine up to $3,300.
- Up to 18 months’ imprisonment.
- Automatic licence disqualification for 3 years (reducible to 12 months).
- Mandatory interlock order for alcohol-related refusals, requiring a device to prevent your vehicle from starting unless a zero BAC is recorded.
- Second or Subsequent Offence:
- Fine up to $5,500.
- Up to 2 years imprisonment.
- Automatic disqualification for 5 years (reducible to 2 years).
- Mandatory interlock order.
Why Refusal Is Risky
Refusing a breathalyzer test does not “avoid” a drink driving charge. Instead:
- Courts often infer that refusal indicates consciousness of guilt, assuming you believed your BAC was over the legal limit.
- Penalties for refusal are often as severe as those for high-range PCA, with no opportunity to prove a lower BAC.
- Refusal can complicate your defence, limiting options to challenge the evidence.
Steps to Take If Charged with Refusing a Breathalyzer Test
If you’ve been charged with refusing a breathalyzer test, taking prompt action is critical to protect your rights and driving privileges. Follow these steps:
1. Contact a Traffic Lawyer Immediately
Engage Nicopoulos Sabbagh Lawyers to receive expert advice tailored to your situation. Our Sydney traffic lawyers will:
- Review the Court Attendance Notice (CAN) and police evidence.
- Advise on whether to plead guilty or not guilty based on the strength of the case.
- Explore defences or negotiate with prosecutors to have the charge withdrawn or downgraded (e.g., to a low-range PCA).
Contact us at info@nslaw.net.au or 0427 101 499 for a free initial consultation.
2. Exercise Your Right to Silence
Avoid making statements to police without legal advice, as they may be used against you in court. Politely provide only identification details and request to speak with your lawyer.
3. Gather Supporting Evidence
Collect evidence that supports your defence, such as:
- Medical records documenting a condition that prevented you from providing a breath sample.
- Documentation of an emergency or other mitigating circumstances. Provide this evidence to your lawyer for analysis.
4. Challenge the Charge in Court
If the charge proceeds to court, our Sydney criminal lawyers will:
- Prepare a defence, supported by evidence and legal arguments.
- Cross-examine police officers to highlight procedural errors or inconsistencies.
- Advocate for a section 10(1)(a) dismissal (no conviction, no penalty) or section 10(1)(b) (Conditional Release Order without conviction) to avoid a criminal record and licence disqualification.
5. Complete a Traffic Offender Intervention Program (TOIP)
Enrolling in an approved TOIP, such as the Traffic Offenders Rehabilitation Program (TORP), can demonstrate remorse and improve your chances of leniency. Courts often view TOIP completion favourably, particularly for first-time offenders.
6. Appeal a Licence Suspension
If your licence is suspended by police pending your court date, you can appeal to the Local Court within 28 days. Our lawyers can prepare a compelling appeal, demonstrating hardship (e.g., loss of employment) or procedural errors.
7. Seek Exemptions from Interlock Orders
If convicted, you may face a mandatory interlock order. Our lawyers can apply for an exemption if you meet criteria, such as not owning a vehicle or demonstrating significant hardship.
Penalties and Consequences of Refusal
Refusing a breathalyzer test can have far-reaching consequences beyond the immediate legal penalties:
Legal Penalties
- Fines: Up to $5,500 for a second offence.
- Imprisonment: Up to 2 years for repeat offenders.
- Licence Disqualification: Automatic periods of 3–5 years, reducible to 12 months or 2 years.
- Interlock Orders: Mandatory for alcohol-related refusals, requiring installation of a costly device for 1–4 years.
- Criminal Record: A conviction remains on your National Police Certificate for 10 years (or 3 years for juveniles) unless spent under the Criminal Records Act 1991.
Broader Consequences
- Employment: A conviction or licence disqualification can impact roles requiring a clean driving record or police check, such as transport or security jobs.
- Insurance: Refusal convictions can lead to higher premiums or difficulty obtaining coverage.
- Travel: Countries like the United States and Canada may deny entry to individuals with criminal convictions.
- Financial Burden: Fines, legal fees, and interlock device costs can create significant financial strain.
A section 10 dismissal or Conditional Release Order (CRO) can help avoid these consequences by preventing a conviction and minimising disqualification periods.
Factors Courts Consider in Refusal Cases
When determining penalties or the possibility of dismissal, NSW courts consider:
- Criminal and Traffic History: A clean record increases the likelihood of leniency.
- Reason for Refusal: Courts may show leniency if refusal was due to a genuine medical issue or misunderstanding.
- Remorse: Demonstrated through guilty pleas, TOIP completion, or apologies.
- Hardship: Impact on employment, family, or health.
- Character: Supported by character references or evidence of rehabilitation.
Our Sydney traffic lawyers will prepare compelling submissions, supported by evidence like medical records or TOIP certificates, to persuade the court to dismiss the charge or impose a lenient penalty.
Why Choose Nicopoulos Sabbagh Lawyers?
At Nicopoulos Sabbagh Lawyers Criminal Defence & Traffic Lawyers, we are dedicated to delivering exceptional legal representation for breathalyzer refusal and other traffic law matters in Sydney, NSW. Our team offers:
- Specialised Expertise: We focus exclusively on criminal law and traffic law, with in-depth knowledge of the Road Transport Act 2013 and related regulations.
- Proven Results: We have secured section 10 dismissals, CROs, and reduced penalties for clients across Sydney, including in Parramatta, Liverpool, and Campbelltown courts.
- Ethical Representation: We adhere to all solicitor rules and ethical standards, ensuring transparent and reliable advice.
- Accessible Support: Contact us at info@nslaw.net.au, 0427 101 499, or 02 9793 7016, or visit www.nslaw.net.au for a free initial consultation.
Don’t let a breathalyzer refusal charge jeopardise your future. Our Criminal Defence Sydney lawyers will fight tirelessly to protect your rights and achieve the best possible outcome.
Conclusion
Refusing a breathalyzer test in Sydney, NSW, is a serious offence with penalties as severe as high-range PCA convictions. While you are legally required to comply with police requests for a breath test, certain defences, such as medical incapacity or procedural errors, may lead to a dismissal or reduced penalty. By engaging Nicopoulos Sabbagh Lawyers, you gain access to expert Sydney traffic lawyers who will explore every avenue to protect your driving privileges and avoid a criminal record.
Take control of your case today. Contact Nicopoulos Sabbagh Lawyers Criminal Defence & Traffic Lawyers via email at info@nslaw.net.au or via phone 0427 101 499, or 02 9793 7016, or visit www.nslaw.net.au to schedule a consultation. Let us help you navigate the complexities of NSW traffic law and secure the best possible result for your case.
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*This article correctly reflects the Laws of NSW as of 21st June 2025.
*Please note that this page or any other pages on our website (including any other social media platforms for Nicopoulos Sabbagh Lawyers) are not to be considered as a substitute for legal advice or even other professional advice. It should also be noted that accessing of this information from this website does not create a client-lawyer relationship.