What is refuse breath test or breath analysis or blood urine sample?
The differences are legally defined as follows:
- Breath test
- This refers to a roadside test breath test.
- Refusing a breath test or failing to provide a sufficient sample is a fine-only offence that does not usually result in any license disqualification. However, you may be required to submit to a breath analysis if you refuse a breath test.
- Breath analysis
- This is the second step after a failed roadside breath test. It is where your breath is analysed at a police station or an RBT bus.
- Refusing a breath analysis or failing to provide a sufficient sample is a much more serious offence that may result in a term of imprisonment.
- Blood / urine sample
- Police can demand blood and urine samples where a person is:
- physically incapable of producing a breath or oral fluid sample; or
- you have refused to submit to an oral fluid test; or
- as a result of a sobriety test, police have determined that you may be under the influence of a drug; or
- you have been involved in a fatal accident or in an accident where a fatality is likely to ensue; or
- you were the driver or supervisor of a vehicle in an accident.
- Police can demand blood and urine samples where a person is:
*Samples must be taken within 4 hours of an accident occurring.
- See Schedule 3 of the Road Transport Act 2013 for further information.
What are the penalties for these offences?
Refuse breath test, Sobriety test or oral fluid test
| Penalty | First Offence | Second or subsequent |
| Maximum court fine | $1,100 | $1,100 |
Refuse breath analysis and refuse blood sample
| Penalty | First Offence | Second or subsequent |
| Automatic license disqualification | 3 years | 5 years |
| Minimum license disqualification | 12 months | 2 years |
| Maximum license disqualification | Unlimited | Unlimited |
| Maximum court fine | $3,300 | $5,500 |
| Maximum imprisonment | 18 months | 2 years |
| Licence Suspension (immediate) | Applicable | Applicable |
| Participation in the interlock program | 2 years or more | 4 years or more |
*NB: The penalties for refuse breath analysis / refuse blood sample are identical to the penalties for high range drink driving.
What are my options?
Plead not guilty
It is possible to defend these charges on the following grounds:
- You can provide expert medical evidence that confirms that you were unable to submit to testing when required to do so;* or
- You have been admitted to a hospital for treatment; or
- It would be unsafe to submit to a test due to injuries sustained; or
- You were within the boundaries of your home when asked to submit to a test; or
- More than 2 hours have elapsed since you were driving.
* Even if you can successfully prove that you were unable to submit to testing, TFNSW may suspend you on the grounds of being medically unfit to drive. Further legal advice should be sought as to whether to proceed on these grounds.
Plead guilty
- s 10 dismissal
- No fine is incurred
- No loss of points
- No disqualification period / suspension is lifted
- No conviction
- Uncommon outcome for refuse breath analysis and refuse blood sample
- Common outcome for refuse breath test, sobriety test or oral fluid test
- Conditional release order (usually with conviction)
- This is subject to a period of good behaviour.
- If good behaviour is breached, you may re-sentenced for this offence, as well as for the offence that breaches the good behaviour.
- Community Corrections Order
- This usually involves some type of community service.
- Intensive Corrections Order
- This is a term of imprisonment that is served in the community.
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