REFUSAL OF BREATH TEST OR BREATH ANALYSIS IN NSW

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Every year, about 5 million drivers in NSW are instructed to submit to a Random Breath Test (RBT). Drivers who are arrested for drink driving after taking that test are typically required to submit to a more sophisticated breath analysis.

Since the offence of drink driving is usually proved with evidence obtained from a breath analysis, drivers sometimes try to avoid a reading by refusing to take the test. Unfortunately, the choice of refusing the test can still have detrimental consequences.

Refusing a Random Breath Test

Schedule 3 of the Road Transport Act 2013 (NSW) authorises two kinds of breath testing. The first is generally known as a Random Breath Test (RBT). A police officer may require any individual to submit to an RBT if the officer reasonably believes:

• the individual was driving a motor vehicle on a road;

• the individual was occupying the driver’s seat and attempting to set a motor vehicle in motion on a road; or

• the individual was occupying the seat next to a learner driver who was driving a motor vehicle on a road.

The officer cannot require an individual to submit to a test if more than two hours have passed since the individual stopped driving. In addition, the police may not require a driver to submit to a test if the driver is in his or her home.

The police are authorised to stop a vehicle in order to require the driver to take a RBT.

If a breath test indicates that the driver has a blood alcohol content in excess of the legal limit, the driver will usually be arrested and taken to the police station to undertake a breath analysis.

Refusing to take the initial breath test is an offence. The maximum fine for refusing to take a breath test is $1,100 (10 penalty units). The refusal does not trigger an automatic licence disqualification, however the court does have discretion to order a disqualification upon conviction of this offence.

Refusing a Breath Analysis

A breath analysis is usually performed at a police station or in a “booze bus.” The machine used to perform a breath analysis is more sophisticated than the portable device that is used to administer a RBT. Unlike an RBT, the results of a breath analysis can be used as evidence in court to prove a drink driving charge.

The penalties for refusing a breath analysis in NSW are serious. The same penalties apply to a “high range” drink driving offence. In other words, a driver who refuses a breath analysis will likely receive the same penalty as a driver who submits to the analysis and is found to have a blood alcohol concentration reading of 0.15 or higher.

For that reason, it is generally a bad strategy to refuse a breath analysis. A driver usually gains the chance of a better outcome by taking the test.

Longton Legal works diligently to help drivers obtain favourable outcomes when they are charged with a refusal or drink driving offence. Defences are also available to you. If you have been charged with an alcohol-related offence, we invite you to contact one of our experienced criminal and traffic lawyers to provide you with quality legal advice.

Call us today on 1800 959 999

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