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Refusing a Breath Test in NSW

A breath test or breath analysis is a test that uses a sample of a person’s breath to estimate their prescribed content of alcohol (PCA), which is the concentration of alcohol in their body.  It is conducted by a police officer or by another person employed by the government who is prescribed by the rules on an approved breath analysing instrument. Refusing a breath test in NSW (New South Wales) by refusing to provide a breath sample for road side testing or for analysis, means that you will be charged.

The offences and penalties are set out in the Road Transport Act 2013.

Breath tests

A person can be charged with refusing a breath test in NSW if they either refused to provide a sample or failed to provide a sufficient sample for the test to work at a roadside test.  They will be arrested and taken to the police station using whatever force is reasonable and necessary where they will be required to take part in a breath analysis.

Refusing a breath test in NSW

At the police station a police officer will conduct a breath analysis on a machine that provides a print out of the blood alcohol content. If an insufficient sample is provided for the machine to make a reading, the print out will show that. The police officer will allow 3 attempts at a reading. If after 3 attempts there is still an insufficient sample or the person refuses to give a sample, then they will be charged with refusing to undergo breath analysis.

Breath analysis

The Breath Analysis machine will always provide a reading that is less than the true blood alcohol concentration. This is due to many factors. You can read about the science behind the machine and the testing here.

The accuracy of breath analysis

There are four defences to a charge of refusing a breath test or a breath analysis.

It is a defence if the driver was unable to submit to the breath analysis due to medical reasons that existed at the time of the request. Expert medical evidence is needed to prove this.

A driver does not need to submit to a breath test or analysis if they have been admitted to the hospital for medical treatment, or if it would be dangerous because of injuries they have sustained. However, the police can have the treating medical officer take a blood test to determine the blood alcohol concentration, unless it would be medically dangerous to do so. If a blood sample is taken, the driver will be provided with their own sample so that they can arrange their own testing.

A driver does not need to submit to a breath test or analysis if they are at home. The driver must be wholly within their property for this to be a defence.

A driver does not have to submit to a breath test or breath analysis if 2 hours have passed from the time that the police were entitled to ask them to undergo the test.

Penalties for refusing a breath test in NSW

Refusing a breath test in NSW is an offence under the Road Transport Act 2013. The maximum penalty is a fine equivalent to 10 penalty units (or about $1,100). There is no automatic licence disqualification, but the court has a discretion to do so.

The penalties for refuse breath analysis are the same as for High Range PCA. If it is your first conviction for a drink driving offence in the last 5 years then the penalty is a fine of up to $3,300.00, imprisonment for up to 18 months, or both, and an automatic disqualification of 3 years (which may be reduced by the court to a minimum 1 year) .

For a second or subsequent offence in the last 5 years then penalties are:

  • a fine up to $5,500
  • imprisonment for up to 2 years, and
  • an automatic disqualification of 3 years (which may be reduced by the court to a minimum 1 year).

From the 1st February 2015, mandatory Interlock orders came into effect, and in some instances part of the disqualification period may be served with the installation of an interlock device. An explanation of what an interlock device is can be found here.

When can police request a breath test?

In NSW, police will routinely request a breath test after any traffic violation. They also have the power to randomly stop vehicles and request that certain occupants give a breath sample.

The police can request a breath test of any person who was or is driving a motor vehicle on a road related area or a road or was sitting in the driver’s seat with the ignition turned on. They may also breath test a person who is instructing or sitting in the seat next to a learner licence holder who was driving on a road related area or a road.

Initially, a person will usually (but not always) be required to take part in a preliminary test, which is done by talking into a machine which will detect the presence of alcohol. If alcohol is detected then the police will ask for a breath test.


Michelle Makela

Michelle Makela is one of our Legal Practice Directors and the National Practice Manager. She holds a Bachelor of Laws, a Bachelor of Science (Psychology) and a Master’s in Criminology. Michelle has had a varied career, working in commercial litigation, criminal law, family law and estate planning. Michelle joined Go To Court Lawyers in 2011. She now supervises a team of over 80 solicitors across Australia.

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