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This article was prepared by Go To Court Lawyers, Australia's largest legal service. For legal advice specific to your situation, call 1300 636 846.
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.
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.
If you require legal advice or representation in a drink driving matter in NSW, please contact Go To Court Lawyers. You can reach us 24 hours a day on 1300 636 846, contact us online or book a consultation with one of our experienced lawyers.
faqs: - question: 'What happens if I fail to provide a sufficient breath sample three times at the police station?' answer: 'You will be charged with refusing to undergo breath analysis if you fail to provide sufficient samples after three attempts. The police officer conducts breath analysis on a machine that prints your blood alcohol content, and insufficient samples are recorded on the printout. After three failed attempts or outright refusal, you face the same penalties as refusing the test entirely.' - question: 'What are the specific penalties for refusing a breath test under NSW Road Transport Act 2013?' answer: 'Under the Road Transport Act 2013, refusing a breath test in NSW carries maximum penalties of up to $5,500 in fines and/or up to 2 years imprisonment. You will also face automatic licence disqualification periods. The exact penalty depends on factors like prior offences and court discretion. These are serious criminal charges that require immediate legal attention.' - question: 'How much does it cost to get legal advice about refusing a breath test charge in NSW?' answer: 'Go To Court Lawyers offers fixed-fee consultations for $295 to discuss your breath test refusal charge. During this consultation, an experienced drink driving lawyer will review your case, explain your legal options, assess potential defences, and provide strategic advice. This upfront pricing ensures you know the consultation cost before proceeding with legal representation.' - question: 'How can a lawyer help me defend a charge of refusing a breath test in NSW?' answer: 'A lawyer can identify and present valid defences such as medical inability to provide samples, hospital admission status, or procedural errors by police. They can gather expert medical evidence, challenge the circumstances of your arrest, negotiate with prosecutors, and represent you in court. Legal representation significantly improves your chances of achieving the best possible outcome.' - question: 'How urgently do I need to act after being charged with refusing a breath test in NSW?' answer: 'You should seek legal advice immediately after being charged with refusing a breath test. Court dates are typically scheduled within weeks, and early legal intervention allows time to gather evidence, obtain medical reports if relevant, and prepare strong defences. Prompt action also enables your lawyer to potentially negotiate better outcomes before court proceedings advance.' ---