Refusing a breath test in New South Wales (NSW) is a serious traffic offence that can lead to severe penalties, including hefty fines, lengthy driver’s licence disqualification, and even imprisonment. The NSW legal system treats refusal to submit to a breath test as a significant violation, reflecting the state’s commitment to road safety and deterring drink driving. Understanding the consequences of refusing a breath test is crucial for drivers facing such charges, as the legal, financial, and personal impacts can be profound. At Nicopoulos Sabbagh Lawyers Criminal Defence & Traffic Lawyers, we specialise in criminal law and traffic law, providing expert legal representation to defend clients against breath test refusal and related charges in Sydney. As leading Sydney criminal lawyers and traffic law specialists, we are dedicated to protecting your rights and securing the best possible outcome in NSW courts.
In this comprehensive article, we explore what happens if you refuse a breath test in NSW, including the legal framework, penalties, defences, and how a lawyer can help mitigate or dismiss charges.
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. For legal Advice, please be sure to contact our office at info@nslaw.net.au, 0427 101 499, or 02 9793 7016, or visit www.nslaw.net.au.
The Legal Framework for Refusing a Breath Test in NSW
Refusing a breath test in NSW is a criminal offence under section 15 of the Road Transport Act 2013, which governs the administration of roadside breath testing (RBT) and subsequent breath analysis to detect alcohol levels in drivers. NSW Police have the authority to conduct RBTs under section 13 to determine a driver’s blood alcohol concentration (BAC). Refusing to provide a breath sample, either at the roadside or at a police station, is treated as seriously as high-range drink driving due to the assumption that refusal indicates an attempt to conceal impairment.
The offence applies when a driver:
- Fails to provide a sufficient breath sample for a roadside test or station analysis.
- Deliberately avoids or refuses to blow into the breathalyser.
- Fails to comply with police directions during testing, such as providing multiple samples.
As of August 20, 2025, the Road Transport Act 2013 incorporates updates from the Road Safety Plan 2021, which introduced stricter enforcement measures, including mandatory interlock programs for serious offences and increased RBT operations. Refusal cases are prosecuted in the Local Court (e.g., Parramatta, Liverpool, or Campbelltown), with penalties mirroring those for high-range prescribed concentration of alcohol (PCA) offences.
Why Refusal Is a Serious Offence
Refusing a breath test undermines road safety efforts, as it prevents police from determining whether a driver is impaired by alcohol, potentially endangering lives. In 2022, alcohol-related crashes accounted for 21% of road fatalities in Australia, justifying the severe penalties for refusal. The law assumes refusal indicates guilt, resulting in consequences as harsh as those for high-range PCA (BAC ≥ 0.15).
Penalties for Refusing a Breath Test in NSW
Refusing a breath test carries significant penalties, equivalent to high-range PCA offences under section 110(5). Penalties depend on whether it’s a first or subsequent offence within five years, with one penalty unit equalling $110 as of August 20, 2025.
Penalties for First Offence
- Fine: Up to $3,300 (30 penalty units).
- Licence Disqualification:
- Automatic: 3 years.
- Minimum: 12 months (reducible by court).
- Interlock Option: 6–9 months disqualification followed by a 24-month interlock order (device costs $2,200–$2,500 annually).
- Imprisonment: Up to 18 months.
- Mandatory Interlock: Required unless the court grants an exemption due to medical or exceptional circumstances (section 211).
- Immediate Suspension: Police may suspend your licence on the spot (section 224).
Penalties for Subsequent Offence (Within 5 Years)
- Fine: Up to $5,500 (50 penalty units).
- Licence Disqualification:
- Automatic: 5 years.
- Minimum: 2 years (reducible by court).
- Interlock Option: 9–12 months disqualification followed by a 48-month interlock order.
- Imprisonment: Up to 2 years.
- Mandatory Interlock: Almost always required.
- Criminal Record: Remains on your National Police Certificate for 10 years (3 years for juveniles) unless spent under the Criminal Records Act 1991.
Additional Consequences
- Demerit Points: 5 points, potentially leading to further suspension for unrestricted licence holders.
- Employment Impact: A conviction can hinder jobs requiring background checks (e.g., transport, security, or government roles).
- Travel Restrictions: Countries like the USA and Canada may deny entry for criminal convictions.
- Insurance Costs: Premiums increase significantly post-conviction.
- Reputation: A conviction can strain personal and professional relationships.
- Driver Knowledge Test: Required for repeat offenders to regain their licence.
Example: A first-time offender refusing a breath test (as at August 20, 2025), faces immediate suspension, a court appearance, and a potential $3,300 fine with a 3-year disqualification unless a Sydney traffic lawyer secures a reduction.
The Court Process for a Breath Test Refusal Charge
Refusing a breath test requires a mandatory court appearance in the Local Court. The process includes:
- Incident and Arrest:
- Police conduct an RBT under section 13. Refusal triggers immediate licence suspension (section 224) and arrest or a Court Attendance Notice (CAN).
- Bail Application:
- A lawyer applies for bail under the Bail Act 2013, arguing you pose no risk.
- Court Mention:
- You enter a plea (guilty or not guilty) in the Local Court (e.g., Parramatta or Liverpool). If not guilty, a hearing is scheduled.
- Hearing or Sentencing:
- For not guilty pleas, a hearing examines evidence (e.g., police statements, CCTV) to determine if the refusal was intentional.
- For guilty pleas or convictions, a sentencing hearing determines penalties.
- Possible Outcomes:
- Conviction with fines, disqualification, or imprisonment.
- Non-conviction outcomes like a section 10(1)(a) dismissal or Conditional Release Order (CRO) under the Crimes (Sentencing Procedure) Act 1999.
- Mental health diversion under section 14, Mental Health and Cognitive Impairment Forensic Provisions Act 2020.
- Appeals:
- Appeal to the District Court within 28 days if the outcome is unfair (Crimes (Appeal and Review) Act 2001).
Defences to a Breath Test Refusal Charge
If applicable to your case, a Sydney criminal defence lawyer can raise several defences to challenge a refusal charge:
- Medical Inability: You were physically unable to provide a sample due to a medical condition (e.g., asthma or panic disorder). Medical evidence is required.
- Unlawful Police Conduct: Police lacked reasonable grounds for the test (section 36, Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA)) or failed to follow procedures.
- Mistake of Fact: You genuinely believed you weren’t required to provide a sample (section 9, Criminal Procedure Act 1986).
- Duress: You refused under threat or coercion.
- Mental Health: A mental health condition contributed to the refusal, supporting a section 14 diversion.
- Procedural Errors: Police failed to caution you or explain the consequences (section 122, LEPRA).
How a Sydney Criminal Lawyer Defends a Breath Test Refusal Charge
At Nicopoulos Sabbagh Lawyers, we employ tailored strategies to defend refusal charges:
- Challenging Evidence: Scrutinising police procedures, such as failure to caution or improper test requests.
- Raising Defences: Presenting medical evidence or arguing unlawful conduct.
- Negotiating Plea Deals: Reducing the charge or securing charge withdrawals.
- Securing Favourable Outcomes: Advocating for section 10 dismissals or CROs to avoid a criminal record.
- Presenting Mitigating Factors: Highlighting remorse, clean record, or completion of the Traffic Offender Intervention Program (TOIP) ($150–$200).
- Appealing Convictions: Filing appeals in the District Court within 28 days if the sentence is harsh.
Example: We successfully secured a section 10 dismissal for a client who refused a breath test due to a medical condition, preserving their licence and record.
Steps to Take When Charged with Refusing a Breath Test
- Engage a Sydney Traffic Lawyer Immediately: Contact Nicopoulos Sabbagh Lawyers at info@nslaw.net.au or 0427 101 499 for a free consultation.
- Exercise Your Right to Silence: Avoid statements to police without legal advice (section 89, Evidence Act 1995).
- Gather Evidence: Collect medical records, witness statements, or proof of rehabilitation (e.g., TOIP certificate).
- Prepare for Court: Work with your lawyer to build a defence or negotiate a plea.
- Complete TOIP: Enrol in the Traffic Offender Intervention Program to show reform.
- Appeal if Necessary: Appeal convictions or apply for spent convictions (Criminal Records Act 1991).
Additional Consequences of a Breath Test Refusal Conviction
Beyond legal penalties, a conviction can lead to:
- Criminal Record: Impacts employment, especially in roles requiring background checks.
- Travel Restrictions: Countries may deny entry for criminal convictions.
- Financial Burden: Interlock costs ($2,200–$2,500/year), fines, and increased insurance premiums.
- Licence Restrictions: Post-conviction, you may face a zero BAC limit for three years.
- Reputation Damage: Affects personal and professional relationships.
Sentencing Considerations
Under section 21A of the Crimes (Sentencing Procedure) Act 1999, courts consider:
- Aggravating Factors: Prior refusals, high-risk behaviour, or endangering others.
- Mitigating Factors: First offence, genuine remorse, medical issues, or TOIP completion.
A Sydney criminal lawyer can present mitigating factors to reduce penalties or secure non-conviction outcomes.
Why Choose Nicopoulos Sabbagh Lawyers?
At Nicopoulos Sabbagh Lawyers Criminal Defence & Traffic Lawyers, we offer:
- Specialised Expertise: In-depth knowledge of the Road Transport Act 2013 and Crimes (Sentencing Procedure) Act 1999.
- Proven Results: Securing section 10 dismissals, reduced penalties, and charge withdrawals across Sydney courts.
- Court Navigation: Expertise in managing cases amidst disruptions, such as the Downing Centre Local Court closure until late 2025.
- Ethical Representation: Adhering to the Legal Profession Uniform Law (NSW) and Solicitors’ Conduct Rules.
- 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 consultation.
The Court Experience: What to Expect
At the Local Court hearing:
- Prosecution Case: Police present evidence, such as officer statements or CCTV, to prove intentional refusal.
- Defence Case: Your lawyer presents evidence (e.g., medical records) and cross-examines police to challenge their case.
- Magistrate’s Decision: The magistrate determines guilt and imposes penalties or dismisses the charge.
A lawyer ensures your case is presented effectively, increasing the likelihood of a favourable outcome.
Preventing Future Charges
To avoid future breath test refusal charges:
- Comply with RBT requests, even if you believe you’re under the limit.
- Seek medical advice if you have conditions affecting breath tests.
- Engage a lawyer for any traffic issues to prevent escalation.
- Complete TOIP to demonstrate commitment to road safety.
Conclusion
Refusing a breath test in NSW is a serious offence, carrying penalties equivalent to high-range PCA, including fines up to $5,500, disqualification up to 5 years, and imprisonment up to 2 years. The Road Transport Act 2013 imposes strict consequences to deter non-compliance, but a Sydney traffic lawyer can defend your case through medical defences, procedural challenges, or non-conviction outcomes. At Nicopoulos Sabbagh Lawyers, we fight to protect your licence, record, and future. Contact us today at info@nslaw.net.au, 0427 101 499, or 02 9793 7016, or visit www.nslaw.net.au for expert representation.
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*This article correctly reflects the Laws of NSW as of 20th August 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