Refusal To breath test

The offence of Refusal or failure to submit to test, analysis or assessment can often be defended on medical grounds. However, to do so, usually medical reports and assessments will be required. A case will be greatly bolstered if a person has contemporaneous medical reports, photographs of any injuries and test results with blood alcohol analysis.

For public policy reasons, the offence of refuse breath analysis has a high penalty and is difficult to have dealt with by section 10. For this reason, we strongly recommended that persons who need their licences for employment, contact one of our experienced solicitors to assist them with this charge.

If you are charged with the offence of Refusal or failure to submit to test, analysis or assessment, your options will normally be to plead guilty or not guilty.

Pleading not guilty

You will be found not guilty of the offence of Refusal or failure to submit to test, analysis or assessment if the police cannot prove beyond reasonable doubt:

  1. You, when required to do so by a police officer under this Part, refused or failed:
    1. To submit to a breath test;
    2. To submit to a breath analysis;
    3. To submit to an oral fluid test;
    4. To submit to a sobriety assessment.

It is a defence to a prosecution for this offence if you proves to the court’s satisfaction that you were unable on medical grounds to submit to the test, analysis or assessment concerned.

Other defences to Driving whilst suspended/disqualified include:


If you agree that you have committed the offence (and the police are able to prove so), it is best to plead guilty as you will normally receive a discount on sentence and it will demonstrate remorse and contrition. Alternatively, it may be the case that one of our experienced solicitors can negotiate with prosecutors for you to plead guilty to less serious facts or even a less serious charge.

In the case of a breath test (roadside), oral fluid test or sobriety assessment, the maximum penalty is $1,100.00.

In the case of a breath analysis, the maximum penalty is $3,300.00 and or imprisonment for 18 months or both for a first offence, or $5,500.00 or imprisonment for 2 years or both for a second or subsequent major offence.

There is a minimum disqualification period of 12 months in the case of a first offence and an automatic period of 3 years. For a second or subsequent offence, there is a minimum disqualification period of 2 years and an automatic disqualification period of 5 years.

Where you are charged with this offence, a court cannot decline to record a disqualification or impose a disqualification less than the mandatory period unless your matter is dealt with by way of section 10 of the Crimes (Sentencing Procedure) Act.

Depending on the circumstances of your offending and the number of times you have committed this offence, our lawyers are often able to convince a court to deal with this offence by way of section 10 of the Crimes (Sentencing Procedure) Act, meaning no conviction will be recorded, there is no other penalty (including no disqualification) and you will have no criminal record. To find out more about a section 10, click here.

In deciding whether to deal with your matter by way of section 10, the court will consider, amongst other factors:

  • Your character (employment, family, charity)
  • Your criminal record (if any)
  • Your traffic record
  • The circumstances of you consuming alcohol
  • The circumstances of your driving
  • The deliberateness of your offending
  • Your need for a licence in particular for employment, family or medical reasons, or where you live in a remote area
  • Whether you have completed the Traffic Offenders Program

Do I need references for Refusal or failure to submit to test, analysis or assessment offence?

In order to obtain a section 10, Refusal or failure to submit to test, analysis or assessment cases should be tailored to address the above factors and matters unique to your own case. In order to give you the best chance of keeping your licence, it is recommended that you work closely with one of our solicitors to prepare your case. Your criminal lawyer will request you obtain references. If the offence is one that carries a loss of licence, the referees should state your needs for a licence. Below are some reasons a court may invoke for not recording, or reducing, a disqualification period.


Loss of employment is a classic reason for a court not disqualifying a person. If a person will lose their job if they lose their licence then the referee should put forward that assertion with absolute certainty. The court will see straight through waffle such as “his position may be reviewed”. For example:

A licence disqualification will prevent Joe Blog’s from fulfilling his duties and hence, if this occurs, he will be asked to temporarily leave his post until the disqualification lapses or if the disqualification is for more than 3 months, his employment will be terminated as per clause 8.2 of his contract enclosed herein. There is no discretion in this situation. He is a sales representative and our clients cannot be serviced by public transport.

Lack of public transport

No viable alternative transport is a matter the court may consider when deciding whether to impose a disqualification. This mainly applies to people in the country, but may apply if you are a shift worker, reside or work in an area not serviced by public transport, or to females who work late. For example:

Joe Blog’s works at Marayong Chickens in an industrial area where there is no public transport. He wakes up at 3am, leaves at 4am, and starts his shift at 5am. We have explored all options and, as he is the only licenced driver in our family, he has no way to get to work if he loses his licence. We have a mortgage and two school age children. Without a licence, he cannot get to work. Worse still, we’d have no way to get to the Richmond shops, a 20 minute drive from where we live on acreage.

Family responsibilities

Family reasons such as care for a child or elderly parents, sickness of yourself or another who relies upon your ability to drive, are matters a court may consider. For example:

Joe Blogs resigned from his job to look after our sick son as he is the only licenced driver in our family who could take him to his daily medical appointments. When he stopped working, I started a lower paying job. Even though it meant less money, it was the only way we could ensure our son received the treatment he needed. Joe is with our son 24 hours a day in case his conditions worsens and he needs to be taken to hospital. We simply cannot look after our son without a car.

A detailed guide to reference writing can be viewed here.

Penalties a court in NSW can impose:

Why choose AC Law Group?

Our solicitors are experts at obtaining section 10 dismissals for Refusal or failure to submit to test, analysis or assessment. For these offences, we offer fixed fees with no hidden extras. To read more about AC Law Group, click here, and call us or make a website inquiry today.

Contact us to book a FREE first consultation

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