Refuse to provide oral fluid sample or refuse or fail to submit to providing blood sample when unable to provide an oral fluid sample

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What is Refuse to provide oral fluid sample or refuse or fail to submit to providing blood sample when unable to provide an oral fluid sample ?

A person who refuses or fails to provide an oral fluid sample, without reasonable excuse or fails to submit to provide a blood sample after refusing to give an oral sample is guilty of an offence. If you are unable to provide a sample of your oral fluid you will be ordered to provide a blood sample. The blood sample must be taken within 4 hours of the driving, or the police cannot rely on it in court. The police will take you to a hospital to have the sample taken. The analytical laboratory will analyse the sample to check for the presence of any drug.

Case law/Jurisdiction

An offence of Refuse to provide oral fluid sample or refuse or fail to submit to providing a blood sample when unable to provide an oral fluid sample will be heard in the Local Court.

The Law

The Law in relation to Refuse to provide oral fluid sample or refuse or fail to submit to providing a blood sample when unable to provide an oral fluid sample is found in section clause 17, Schedule 3 of the Road Transport Act 2013 (NSW) which states:

“A person must not, when required to do so by a police officer under this Part, refuse or fail: to provide an oral fluid sample under Division 3 for an oral fluid analysis in accordance with the directions of the officer”

What must the prosecution prove?

Since Refuse to provide oral fluid sample or refuse or fail to submit to providing a blood sample when unable to provide an oral fluid sample is a criminal offence, the burden of proof lies on the Prosecution.

The prosecution must prove the Accused’s guilt beyond reasonable doubt.

That is a high standard of proof that the prosecution must achieve before someone can be convicted of Refuse to provide oral fluid sample or refuse or fail to submit to providing a blood sample when unable to provide an oral fluid sample.

To establish Refuse to provide oral fluid sample or refuse or fail to submit to providing a blood sample when unable to provide an oral fluid sample the prosecution must prove each of the following matters beyond reasonable doubt:

That you failed to provide an oral fluid sample, without reasonable excuse or to submit to provide a blood sample after refusing to give an oral sample

If you are charged with the offence of Refuse to provide oral fluid sample or refuse or fail to submit to providing a blood sample when unable to provide an oral fluid sample what are your options?

National Criminal Lawyers have been successful in defending a number of Refuse to provide oral fluid sample or refuse or fail to submit to providing a blood sample when unable to provide an oral fluid sample charges where the prosecution could not establish each of the elements offence. We have also achieved a number of non-convictions for Refuse to provide oral fluid sample or refuse or fail to submit to providing a blood sample when unable to provide an oral fluid sample.

NCL offer the following options for those who have been charged with Refuse to provide oral fluid sample or refuse or fail to submit to providing a blood sample when unable to provide an oral fluid sample:

  1. We will negotiate with prosecutors (police or DPP) (a term referred to as “plea negotiations”) to request that the charge is withdrawn or fact sheets amended;
  2. NCL will Plead Not Guilty and go to hearing/trial and persuade the Court that prosecution has not proven its case beyond reasonable doubt;
  3. Plead guilty to the elements of the charge and then dispute the facts (at a special “disputed facts” hearing) with the view of having you sentenced less harshly; and/or
  4. Plead guilty with full acceptance of the facts as set out by the police and make strong submissions on your behalf requesting that the Court not record a criminal conviction.

Pleading Guilty

If you agree that you have committed the offence and the police are able to prove all the elements of the offence, it is best to plead guilty at an early opportunity to receive the maximum discount. Currently the maximum discount available for an early plea of guilty is 25% of the sentence.

Furthermore, the early guilty plea shows the Court that you have remorse and contrition for your actions.

Our Lawyers at National Criminal Lawyers work closely with you to ensure that we obtain all necessary paper work at increasing the chances of obtaining a non-conviction or section 10.

Maximum Penalties

For a first offence of Refuse to provide oral fluid sample offenders can be punished with a maximum fine of $3300, Automatic licence disqualification for 12 months, with the discretion of the magistrate to reduce licence disqualification to a minimum period of 6 months.

The penalties increase for first offenders who fail to give urine or blood to a possible prison sentence of 18 months and an automatic licence disqualification of up to 3 years with the discretion of the magistrate to reduce licence disqualification to a minimum period of 12 months (in the case of refuse to give blood sample) and 6 months (in the case of refuse to give urine sample).

For a second or subsequent offences of Refuse to provide oral fluid sample these offenders can be punished with a to a possible prison sentence of 18 months, a maximum fine of $5500 and an automatic licence disqualification for 5 years with the discretion of the magistrate to reduce the licence disqualification to a minimum period of 12 months.

The penalties increase for second or subsequent offenders who fail to give urine or blood to a possible prison sentence of 2 years and an automatic licence disqualification of up to 5 years with the discretion of the magistrate to reduce the licence disqualification to a minimum period of 2 years (in the case of refuse to give blood sample) and 12 months (in the case of refuse to give urine sample).

Please note that the penalties mentioned are reserved for the worse case offending and are unlikely to be the penalty you receive.

Pleading Not Guilty

If you decide to plead not guilty you will need to prepare to go to a Defended Hearing.

A defended hearing is where all the witnesses of that case are called to give evidence. The witnesses are both examined by the prosecution and tested by your defence lawyers.

National Criminal Lawyers are experts at these hearings and can advise you on what the police must prove beyond reasonable doubt.

Defences

Some of the possible defences available for those charged with Refuse to provide oral fluid sample or refuse or fail to submit to providing a blood sample when unable to provide an oral fluid sample can include:

  • It is a defence if the drug was prescribed by a medical practitioner and was taken in accordance with a medical practitioner’s prescription, or for a codeine-based medicinal drug, if it was purchased from a pharmacy and has been taken in accordance with the manufacturer’s instructions.
  • If you were compelled to act in a certain way due to the circumstances, or the threats of another you may be able to argue “Duress”;
  • If your actions were necessary to prevent a greater harm from occurring, you may have the defence of “Necessity”;

Statistics

The Courts are not bound by statistics however there must be reasonable consistency in sentences. A Magistrate or Judge should have regard to what has been done in other cases. In Green [2011] HCA 45, the plurity judgement of French CJ, Kiefel and Creennan JJ stated:

“Equal Justice” embodies the norm expressed in the terms “equality before the law”. It is an aspect of the rule of law.

For first offenders of Refuse to provide oral fluid sample 65% received a fine.

For second and subsequent offences or Refuse to provide an oral sample 14% received prison, 14% received an ICO whereas 43% received a fine

For first offenders of fail to submit to providing a urine sample 60% received a fine.

For subsequent offenders of fail to submit to providing a urine sample 43% received a good behaviour bond.

For first offenders of fail to submit to providing a blood sample 56% received a fine whereas 25% received a good behaviour bond.

For subsequent offenders of fail to submit to providing a blood sample 33% received full time imprisonment whereas 67% received a good behaviour bond.

Possible Penalty's

In NSW, a court can impose any of the following penalties for an Wounding or grievous bodily harm with intent charge.

  • Prison sentence;
  • Home Detention;
  • Intensive correction order (previously periodic detention);
  • Suspended sentence;
  • Community service order (CSO);
  • Good behaviour bond;
  • Fine; and/or
  • Section 10

However, from the 24 September 2018 new penalty’s will be replacing the above. They are as follows:

  • Full time Imprisonment;
  • New ICO (ICO) with a home detention condition available;
  • New Community Correction Order (CCO);
  • Fine; or
  • New Conditional release Order (CRO)

Case Studies

Our client was pulled over after police saw her performing an illegal U-turn. She refused to provide an oral sample and was charged accordingly. In Court we tendered and made submissions on character references and a letter of apology.  She was discharged from the charge on the condition that she entered into a non-conviction good behaviour bond.

Why National Criminal Lawyers?

There are three reasons to choose National Criminal Lawyers:

1. We get the results

We are the experts in either beating or having criminal charges withdrawn AND/OR obtaining the least restrictive penalty available. This is because no matter which option you choose within our tailored Options at Law you will be dealing with experienced criminal lawyers who can make sure the evidence is not only obtained properly but also that your case is prepared and presented to the highest best practice standards possible. This is also done without breaking your pocket.

2. We give a Senior Defence Lawyer guarantee

No matter which option at law you choose, National Criminal Lawyers can guarantee that a Senior Defence Lawyer will represent you. This means that with our over 25 years of Combined criminal law experience you will get the best result possible.

3. National Criminal Lawyers are the best defenders of your rights

At National Criminal Lawyers we know that Criminal Law is a matter of Human Rights. For this reason, we take pride and passion in representing our clients. This pride and passion to assist those charged with an alleged or actual breach of the criminal law is to us a matter of righteous necessity and in that sense, you can always rest assured that National Criminal Lawyers are the best defenders of your rights. This true not only when the police have just simply got it wrong OR if they have got it right then we can speak with you and make sure you get you the best result available.

If you have been charged with any Refuse to provide oral fluid sample or refuse or fail to submit to providing a blood sample when unable to provide an oral fluid sample offence our Team and National Criminal Lawyers are well versed and specialists in having charges either withdrawn and otherwise achieving favourable outcomes.

Please contact our office on 02 9893 1889 or visit www.nationalcriminallawyers.com.au for more information about your options.

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