WHAT HAPPENS IF YOU REFUSE A BREATH TEST IN NSW?

on October 27, 2025

Refusing a breath test in New South Wales is a serious offence that can lead to significant penalties, including hefty fines, licence disqualification, and even imprisonment. Often associated with drink driving charges, refusing a breath test carries consequences as severe as, or worse than, a high-range drink driving offence. At Nicopoulos Sabbagh Lawyers Criminal Defence & Traffic Lawyers, our traffic lawyers in Sydney, NSW, specialize in defending clients charged with refusing a breath test, helping them navigate complex legal processes and minimize penalties. This comprehensive article explains what happens if you refuse a breath test in NSW, the legal framework, penalties, defences, and how our criminal defence lawyers in Sydney can assist. As a leading criminal law firm in Sydney, we’re committed to protecting your driving privileges and securing the best possible outcomes.

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.

Understanding Refusal of a Breath Test in NSW

Refusing a breath test occurs when a driver declines to provide a breath sample during a Random Breath Test (RBT) or subsequent breath analysis conducted by NSW Police. This offence is prosecuted under Section 116 of the Road Transport Act 2013 (NSW), which criminalizes failure to comply with a police request for a breath test, breath analysis, or sobriety assessment. In 2023–2024, Transport for NSW reported over 2,500 charges for refusing breath tests, with 80% resulting in court appearances due to the offence’s severity. Refusal is treated seriously because it undermines efforts to combat drink driving, which contributes to 20% of fatal crashes in NSW (Transport for NSW, 2024).

Types of Breath Tests

  1. Random Breath Test (RBT):
    1. Conducted roadside using a handheld breathalyzer to detect alcohol levels.
    1. Over 5 million RBTs are performed annually in NSW.
  2. Breath Analysis:
    1. Conducted at a police station or mobile testing unit after a positive or inconclusive RBT.
    1. Provides a precise blood alcohol concentration (BAC) reading (Section 110(6)).
  3. Sobriety Assessment:
    1. Required if police suspect impairment but cannot conduct a breath test (e.g., equipment failure, Section 116(2)).

Refusing any of these tests without a reasonable excuse constitutes an offence.

Legal Framework for Refusing a Breath Test

The legal framework governing breath test refusal includes:

  • Road Transport Act 2013 (NSW): Defines the offence of refusing a breath test (Section 116), drink driving offences (Section 110), and testing procedures (Section 137).
  • Crimes (Sentencing Procedure) Act 1999 (NSW): Allows Section 10 dismissals to avoid convictions (Section 10).
  • Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA): Authorizes police to conduct RBTs and arrests (Section 99).
  • Evidence Act 1995 (NSW): Governs evidence admissibility (Section 138 for unlawfully obtained evidence).
  • Bail Act 2013 (NSW): Regulates bail for serious charges (Section 18).
  • Crimes (Appeal and Review) Act 2001 (NSW): Allows appeals to the District Court (Section 11).

Penalties for Refusing a Breath Test

Refusing a breath test is treated as severely as high-range PCA (BAC ≥ 0.15) under Section 116(2) of the Road Transport Act 2013. Penalties, updated for 2025, include:

First Offence:

  • Fine: Up to $3,300 (30 penalty units).
  • Imprisonment: Up to 18 months.
  • Licence Disqualification:
    • Minimum: 6 months.
    • Automatic: 12 months (extendable for aggravating factors).
  • Interlock Device: Mandatory for 2 years post-disqualification for first offences involving alcohol suspicion (Section 211).

Subsequent Offence:

  • Fine: Up to $5,500 (50 penalty units).
  • Imprisonment: Up to 2 years.
  • Licence Disqualification:
    • Minimum: 12 months.
    • Automatic: 2 years–unlimited.
  • Interlock Device: Mandatory for 4 years post-disqualification (Section 211).

Additional Penalties

  • Police Immediate Suspension: Immediate licence suspension upon refusal (Section 224), lasting until court resolution or 6 months.
  • Criminal Record: Convictions appear on National Police Checks, impacting employment (25% rejection rate, per BOCSAR 2024) and travel.
  • Demerit Points: Not applicable, but refusal often accompanies other offences (e.g., speeding, 3–6 points).
  • Vehicle Impoundment: Possible for repeat offenders (Section 239).

Aggravating Factors

  • Repeat Offences: Harsher penalties for prior drink driving or refusal convictions within 5 years (Section 9(3)).
  • Dangerous Driving: If refusal accompanies reckless behaviour, penalties escalate to 7 years imprisonment (Section 52A).
  • School Zones: Increased fines and disqualification periods.

Consequences of Refusing a Breath Test

Refusing a breath test can significantly disrupt your life:

  • Employment: Disqualification affects jobs requiring driving (40% of suspensions lead to job loss, per BOCSAR 2024).
  • Financial Impact: Fines ($3,300–$5,500), legal fees ($2,000–$10,000), and alternative transport costs ($2,000–$5,000).
  • Criminal Record: Impacts job applications, professional licensing (e.g., Security Industry Act 1997), and international travel (e.g., visa denials to Canada).
  • Insurance: Premiums increase by $500–$2,000 annually.
  • Personal Life: Licence loss affects family responsibilities and mobility.

Steps to Take If Charged with Refusing a Breath Test

Facing a breath test refusal charge requires prompt action:

  1. Seek Legal Advice Immediately: Contact Nicopoulos Sabbagh Lawyers at info@nslaw.net.au or call 0427 101 499 or 02 9793 7016 for a free consultation.
  2. Exercise Your Right to Silence: Decline to answer police questions beyond identity (Section 89, Evidence Act 1995).
  3. Understand the Charge: Review the Court Attendance Notice (CAN) to confirm details (e.g., refusal type, date, location).
  4. Gather Evidence: Collect medical records, witness statements, or dashcam footage to support defences (e.g., medical excuse).
  5. Prepare for Court: Complete TOIP or alcohol counselling to demonstrate remorse, increasing Section 10 chances.
  6. Attend Court: Appear at the Local Court (e.g., Downing Centre) for a hearing, typically 3–6 months after the charge.
  7. Appeal if Necessary: If convicted, appeal to the District Court within 28 days (Section 11, Crimes (Appeal and Review) Act 2001).

Avoiding a Criminal Record

A breath test refusal conviction results in a criminal record, but it can be avoided through:

  • Section 10 Dismissal: No conviction, no record, and potentially reduced penalties (10% of refusal cases, per BOCSAR 2024).
  • Acquittal: Successful defences (e.g., medical excuse) avoid all penalties.
  • Evidence: Character references, TOIP certificates, and hardship evidence (e.g., job loss risk) support leniency.

Our Role: We maximize Section 10 chances, protecting your record and driving privileges.

Why Choose Nicopoulos Sabbagh Lawyers?

A breath test refusal charge threatens your licence, finances, and future, but you don’t have to face it alone. At Nicopoulos Sabbagh Lawyers Criminal Defence & Traffic Lawyers, we offer:

  • Specialised Expertise: Extensive experience in traffic law and criminal law, defending thousands of refusal and drink driving cases in Sydney courts like Downing Centre, Parramatta, Blacktown, and Burwood.
  • Proven Results: Success in securing Section 10 dismissals, acquittals, and reduced penalties.
  • Client-Centred Approach: Tailored strategies to protect your record and driving privileges.
  • 24/7 Support: Available for urgent advice during arrests, RBT, or court deadlines.
  • Community Focus: Our Sydney-based firm educates drivers through Instagram Reels, reinforcing our commitment to road safety and justice.

Frequently Asked Questions About Refusing a Breath Test in NSW

1. What Happens if You Refuse a Breath Test in NSW?

You face $3,300–$5,500 fines, Licence disqualification, up to 2 years imprisonment, and a criminal record (Section 116).

2. Can I Avoid a Criminal Record for Refusing a Breath Test?

Yes, through a Section 10 dismissal for first offences or valid excuses (e.g., medical reasons), or an acquittal if not guilty.

3. How Are Breath Test Refusals Detected?

Police observe refusal during RBT or breath analysis, supported by dashcam footage or officer testimony (Section 99, LEPRA).

4. How Long Does a Refusal Case Take in NSW?

Local Court hearings take 3–6 months. Our traffic lawyers expedite where possible.

The Broader Context: Drink Driving Enforcement in NSW

NSW’s Road Safety Plan 2026 targets a 50% reduction in alcohol-related crashes (20% of fatalities, per Transport for NSW, 2024) through 5 million annual RBTs. Breath test refusal is a focus due to its severity, with 80% of cases prosecuted in court. Concerns about fairness, particularly for First Nations drivers (20% of suspensions, per BOCSAR 2024), highlight the need for expert legal support to ensure equitable outcomes.

Contact Nicopoulos Sabbagh Lawyers Today

Refusing a breath test can lead to severe consequences, but you don’t have to accept them. At Nicopoulos Sabbagh Lawyers Criminal Defence & Traffic Lawyers, our traffic lawyers in Sydney provide expert defence, securing Section 10 dismissals, acquittals, or reduced penalties to protect your future. With our deep expertise in traffic law and criminal law, we’ll guide you with precision and care.

Don’t let a charge derail your life. Contact Nicopoulos Sabbagh Lawyers today at info@nslaw.net.au, call 0427 101 499 or 02 9793 7016, or visit www.nslaw.net.au for a free consultation. Let our Sydney criminal law firm, one of the best in NSW, fight for your justice and peace of mind.

Why Choose Nicopoulos Sabbagh Lawyers Criminal Lawyers & Traffic Lawyers YOUR Leading Sydney Criminal Defence & Traffic Lawyers to represent you in your Traffic Law Matter?

Nicopoulos Sabbagh Lawyers are the leading Law firm in Traffic Law matters as our office appears at ALL Courts in NSW on a regular basis in ALL Traffic Law matters.  No matter is too complex for Nicopoulos Sabbagh lawyers, your Traffic Sydney Lawyers, so be sure to book your first Free Consultation today!

GOING TO COURT?

It is very important that you speak with a lawyer so that you can get the appropriate legal advice which you require prior to going to court. 

Our team of experienced solicitors are there for you and can help you answer all your questions, so be sure to contact your Sydney Lawyers, Nicopoulos Sabbagh Lawyers.

*This article correctly reflects the Laws of NSW as of 18th October 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.

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