Refusal or Failure to Submit to Test, Analysis, or Assessment

Criminal lawyers for refusal or failure to submit to test, analysis, or assessment

Convictions for Refusal or failure to submit to test, analysis or assessment, can have catastrophic consequences on your life. This is why you need an expert traffic lawyer for your case. Our criminal and traffic lawyers know how to get you the most lenient sentence including having no conviction recorded. We also use defences that can lead to not guilty acquittals. 

Our criminal lawyers often defend the charge of Refusal or failure to submit to test, analysis or assessment on medical grounds using medical reports and assessments. We use our expertise to bear these offences because we know how unfair it is losing your employment because the court takes your licence away. We know that having a licence to travel to and from work means there is enough time to kiss your kids’ goodbye in the morning and tuck them in before bed. 

How do I defend a charge of Refusal or failure to submit to test, analysis or assessment?

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:

You, when required to do so by a police officer under this Part, refused or failed:

1. To submit to a breath test; or
2. To submit to a breath analysis; or
3. To submit to an oral fluid test; or
4. To submit to a sobriety assessment.

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

Penalty for a first offence

In the case of a breath test (roadside), oral fluid test or sobriety assessment, the maximum penalty is $1,100.00. There is no mandatory disqualification period.

In the case of a breath analysis, you will not be disqualified from driving if the court deals with your charge by way of section 10, which means you keep your driver’s licence (it isn’t disqualified) and you will have no criminal record. 

To find out more about a section 10, click here.

If the court convicts you, the mandatory interlock program applies to a first offence. This means to drive you will be required to install an interlock device on your car following the disqualification expiring. 

If an interlock order is made you will be disqualified for 6-9 months, then placed on the interlock program for a further 24 years. 

Participants in the interlock program are required to have devices that connect to the ignition of a vehicle and prevent it from starting if the driver cannot pass an alcohol breath test. The cost of installing the device and the annual licensing fee is paid by the person subject to the interlock order. 

Interlock licence holders are required to have a zero-blood alcohol concentration (BAC) when driving. 

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.

Penalty for a second offence within 5 years

You will not be disqualified from driving if the court deals with your charge. This means you keep your driver’s licence (it isn’t disqualified) and you will have no criminal record. 

To find out more about a section 10, click here.

If the court convicts you the mandatory interlock program applies to a second offence of refuse to submit to breath analysis. This means to drive you will be required to install an interlock device on your car following the disqualification expiring. 

If an interlock order is made you will be disqualified for 9-12 months, then placed on the interlock program for a further four years. 

Participants in the interlock program are required to have devices that connect to the ignition of a vehicle and prevent it from starting if the driver cannot pass an alcohol breath test. The cost of installing the device and the annual licensing fee is paid by the person subject to the interlock order. 

Interlock licence holders are required to have a zero-blood alcohol concentration (BAC) when driving. 

If you are convicted of a second offence Refuse to submit to breath analysis, the maximum fine that a court can impose is $5,500.00. The maximum term of imprisonment is two years.

You can read about all the sentencing options that a court has, including having no conviction recorded.

What will my traffic lawyer do to prepare my case?

To prepare your case to the highest standard and speak on your behalf, evidence supporting submissions on the above factors are usually supplied to your traffic lawyer and then tendered to the court. Examples of evidence that may assist in an Appeal includes:

• Certificate of completion of the Traffic Offenders Program.
• References from employers, family members and health professionals stating why you have a need for a driver’s licence e.g. for work, to pick up and drop off children from school, a chronic back condition, etc.
• Employment contracts stating that having a driver’s licence is a condition of employment.
• Medical documentation about any medical conditions you or members of your family have.
• Trip planner documents showing geographic isolation or unavailability of public transport from your residential address to your place of employment.
• A letter of apology or affidavit stating what happened.

Do I need references?

We believe references are an extremely important part of a plea of guilty in court. To find out more about how to write a good reference, click here.

Why choose Australian Criminal Law Group?

Our criminal lawyers are experts at obtaining the best outcome possible for Refuse to submit to test offences, including no convictions. For these offences, a good lawyer can be the difference between a conviction and no criminal record, losing your licence or keeping it, and freedom or jail. To read more about Australian Criminal Law Group, click here.

To discuss your Refuse to submit to test charge, call Australian Criminal Law Group at our Sydney, Parramatta, and Blacktown offices or make a website inquiry today.

Case Study

Australian Criminal Law Group appeared for a man incorrectly charged with fail to submit to breath, a fine only offence. He should have been charged with Refuse breath analysis, an offence carrying a maximum penalty of 18-months imprisonment and an automatic disqualification of three years. Both charges had to be laid within six months of the allegation. Our solicitor entered a plea of not guilty and by the time of the defended hearing the police were not allowed to lay the more serious offence and our client was found not guilty of all charges.

Case Study

Mr Harb represented a driver charged with High Range PCA. The driver was breath tested by police in his driveway. Mr Harb argued the ‘Home Safe’ defence and the magistrate dismissed the charge with a finding of not guilty.

Case Study

Mr Harb represented a driver charged with High Range PCA. There had been a minor accident that delayed the breath testing because the police were not immediately called. The police alleged that the breath test was done about 1 hour and 45 minutes after the driving/accident. Mr Harb argued that there was room for error in the estimate of time between the driving/accident in the breath test. He argued that the court could not find beyond reasonable doubt that the breath test was done within two hours of the driving. The magistrate dismissed the charge with a finding of not guilty.

Case Study

Mr Correy represented a woman charged with High Range PCA. She was stopped speeding in a street. Mr Correy put forward to the Magistrate that she only drove the car to escape a threat of domestic violence She was stopped less than 100 metres from where her partner had attempted to assault her. The Magistrate accepted the reason for her driving and dismissed the charge under section 10 and did not record a conviction. 

Case Study 

Mr Adut appeared for a man who was charged with High Range PCA and had  five drink driving offences on his record, including two High Range PCA offences. Mr Adut took the matter to the District Court and ran a section 32 application. This was on the basis that his client was self-medicating to address his Post Traumatic Stress Disorder. The judge found the circumstances to be exceptional and dismissed the charge pursuant to s 32 without recording a conviction. 

Case Study

Mr Harb acted for three drink driving sentences in one day. Two for Mid-Range PCA and one for Low Lange PCA. The court dealt with each of the matters under section 10 and did not record a conviction, meaning his three clients did not lose their licence. 

Case Study

Mr Correy appeared for a client charged with Mid-Range PCA. He had been stopped driving the morning after going out drinking with his family. The Magistrate accepted that Mr Correy’s client was unaware he was over the limit at the time he drove theca, and did not record a conviction, meaning his client did not lose their licence. 

Case Study

Australian Criminal Law Group represented a man charged with Driving under the influence, assaulting police and resisting arrest. The police relied on evidence from a roadside breath test that showed he had a blood alcohol concentration of more than 0.450. When our client was told of the reading, he protested his innocence and refused to attend the police station and in the process he assaulted and resisted police. Our solicitor argued at a defended hearing that the reading was preposterously high, and our client would not have been able to communicate or interact with the police with such a high reading. Medical evidence was put forward that a reading so high would require hospitalization for alcohol poisoning and could have resulted in death. The Magistrate accepted that the conduct of our client against the reading on the breath testing machine meant that the machine was undoubtedly broken. The magistrate dismissed the driving under the influence charge and held the arrest to be illegal and dismissed the assault police and resist arrest charges as well. Our client is now suing the police for unlawful imprisonment and malicious prosecution.