Can You Refuse a Roadside Breath Test in NSW?

The roadside breath test

Under the Road Transport Act 2013 (NSW), an officer can require you to take a breath test if they have reasonable cause to believe you’re driving, were driving, are in the driver’s seat trying to start the car, or are supervising a learner. They can signal you to pull over, and you have to stop. This is the handheld screening test used at a random breath testing (RBT) stop or after you’ve been pulled over. If it’s positive, you’ll be arrested and taken for the formal test.If you refuse or fail to take the roadside breath test, the maximum penalty is a fine of 10 penalty units, which is $1,100. It’s the least serious of the refusal offences, but it’s still a conviction you’d rather avoid, and refusing usually leads straight to arrest anyway.

The breath analysis is the serious one

After a positive roadside test or an arrest, police take you to a station or the breath testing van for a breath analysis on the approved instrument. That result is the one used in court. Refusing this test is where the real trouble starts.For a first offence, refusing a breath analysis carries a maximum fine of 30 penalty units ($3,300), up to 18 months in prison, or both. A second or later offence lifts that to 50 penalty units ($5,500), up to 2 years in prison, or both. Those are the same maximums that apply to high-range drink driving.

You’ll also lose your licence

A conviction for refusing a breath analysis is a mandatory interlock offence. For a first offence, the court must disqualify you from driving for between 6 and 9 months, then place you on an interlock licence for at least 2 years. An interlock is a breath-testing device wired into your car that stops it starting until you give a zero reading, and you pay for it. A court can grant an exemption in limited cases (for example, where you genuinely have no access to a vehicle to fit one), but if it does, a straight disqualification of at least 12 months applies instead. Either way, you’re off the road for a long time.

When police can and can’t test you

The law puts limits on breath testing, and they matter. Police can’t require a breath test or analysis more than two hours after you last drove. They also can’t require one at your home. So if you’ve made it home and you’re no longer driving, the situation is different, and it’s worth getting advice before assuming you were obliged to comply. These limits are technical, and whether they apply turns on the exact facts, so don’t rely on them without checking with a lawyer.

Is there ever a lawful reason to refuse?

There’s one defence written into the law. If you can prove you were unable to take the test on genuine medical grounds, that’s a defence to a refusal charge. Being nervous, drunk, or unhappy about being stopped isn’t a medical reason. A real medical condition that stopped you providing a sample might be, but you’d need evidence, usually from a doctor. “I panicked” or “I didn’t think I had to” won’t help.