Refuse breath test / Fail to provide sufficient sample for breath test
In NSW, you are guilty of refusing a breath analysis offence if:
a. You refuse to provide a sample to the Police at a roadside test.
b. You failed to provide a sample to the Police at a roadside test.
c. You were the driver of a motor vehicle on a public road, you had undergone a roadside breath test which returned a positive reading and when required to submit to breath analysis, either refused or failed to provide a sufficient sample for analysis, without reasonable excuse.
Points to Remember:
a. You cannot refuse or fail a breath analysis on the basis that you wanted to seek legal advice prior to providing a sample for breath analysis.
b. You can still be charged with failing to provide a sufficient sample, even if you have tried to give a sample. That is, you not only need to submit to a breath analysis, but you need to provide a sufficient sample. For some people, it can be difficult to comply.
c. The police usually attempt to take a breath analysis up to three times. If all three attempts are unsuccessful, then you will be usually be charged with refuse or fail to provide sufficient breath sample.
What can happen to me if I am charged with Refuse breath test or fail to provide sufficient sample?
The offence is a serious offence. The penalty provisions that apply to both refuse and fail to provide a sufficient sample is the same as the High Range Drink Driving Matter. [hyperlink]
Can I go to Gaol for Refuse or Fail to Provide sufficient sample?
Yes. Refusing or failing to provide a sufficient breath analysis, even for a first offender, can result in a custodial sentence.
Whether or not a custodial sentence will be imposed on you, depends on a number of factors, including the objective seriousness of the nature and circumstances of the offence together with consideration of your personal circumstances.
What Can I do?
If you have been charged with either Refuse breath test or fail to provide sufficient sample for breath test, you should contact us urgently for an obligation free discussion. We can help you with advice regarding your matter, as well as preparation for Court.