Refusing a Breath Test? The Hidden Dangers of Refusing in NSW

Introduction: Why Refusing the Test Can Be Worse Than Failing It
You’re driving home after a few drinks when flashing red and blue lights appear behind you. A police officer approaches and asks you to blow into a roadside breathalyser. You hesitate, maybe you’re unsure of your rights, maybe you panic, maybe you think refusing might save you from a charge.
In NSW, refusing a breath test can be just as serious, and sometimes more serious, than actually blowing over the limit.
Under the Road Transport Act 2013 (NSW), refusing or failing to provide a breath test or breath analysis is a criminal offence that carries severe penalties, including automatic licence disqualification and potential imprisonment.
At National Criminal Lawyers®, our drink driving lawyer Sydney team has defended many drivers who thought refusing the test would help them, only to discover it made matters worse. This blog explains why, outlines the law, explores real case examples, and shows how a PCA offence lawyer Parramatta can help if you’ve been charged.
National Criminal Lawyers® were voted Traffic Lawyers of the Year 2019, and have been the leading traffic lawyers and drink driving lawyers in Sydney.
 
1. The Law: What Counts as “Refusing a Breath Test” in NSW
There are two stages of alcohol testing in NSW:
Roadside Breath Test (s 13, Schedule 3, Road Transport Act 2013)
Conducted by police on the roadside.
Used to detect whether alcohol is present (not how much).
Refusing or failing to comply without a valid excuse is an offence.
Breath Analysis (s 16, Schedule 3, Road Transport Act 2013)
Conducted after arrest or escort to a police station or mobile bus.
Provides a precise blood alcohol concentration (BAC).
Refusing or failing to provide a sample at this stage carries even harsher penalties.
The relevant offence provision is clause 16(1) of Schedule 3, which states:
“A person must not, when required to submit to a breath analysis, refuse or fail to do so.”
The law doesn’t distinguish between deliberate refusal and failure to comply due to confusion, unless you can show a reasonable excuse (discussed below).
 
2. Penalties for Refusing a Breath Test or Analysis
Refusing a breath analysis carries the same maximum penalties as high-range drink driving, even if you weren’t over the limit.
Offence
Maximum Fine
Maximum Imprisonment
Automatic Disqualification
First offence
$3,300
18 months
3 years (minimum 12 months)
Second or subsequent
$5,500
2 years
5 years (minimum 2 years)
(Road Transport Act 2013 (NSW), Schedule 3, cl 16(1) & 16(2))
Police and courts treat refusal as obstruction of justice, because it prevents them from determining your true BAC level. As a result, magistrates often assume that the driver refused because they were over the legal limit, leading to tougher sentencing.
 
3. Real Case Examples: Courts Take Refusals Seriously
Director of Public Prosecutions (NSW) v Elsworthy [2009] NSWSC 229
Elsworthy argued he was too anxious to blow into the machine. The Supreme Court held that “panic” alone was not a reasonable excuse, confirming that refusal laws are to be interpreted strictly.
Police v Hekimian [2007] NSWLC 27
The defendant refused to take a breath test after a crash, alleging chest pain. The Local Court held that if genuine medical distress existed, refusal may be excusable, but expert evidence was needed.
These cases show the courts rarely excuse non-compliance without clear, medical or legal justification.
 
4. Common Misunderstandings About Refusing a Test
❌ “I have the right to remain silent, so I can refuse.”
No. The right to silence doesn’t extend to mandatory breath testing. Under Schedule 3, Clause 13, police may lawfully require a sample without suspicion.
❌ “If I don’t blow, they can’t prove I was drunk.”
Wrong. Refusal itself is a standalone criminal offence. The prosecution doesn’t need to prove you were intoxicated; only that you refused or failed to comply.
❌ “I can refuse if I’m on private property.”
Police cannot conduct random roadside breath tests on private property unless you were driving on a public road immediately beforehand. However, if you enter your driveway immediately after driving, refusal can still be prosecuted, as confirmed in DPP v Elias [2007] NSWSC 836.
 
5. The “Reasonable Excuse” Defence
The only defence available is having a reasonable excuse for not providing a breath sample. The bar for “reasonable” is high.
Examples the courts have accepted include:
Serious medical condition (e.g., recent lung surgery, severe asthma, heart attack).
Physical incapacity (injury preventing blowing or standing).
Genuine confusion caused by police misconduct or unclear instructions.
Religious observance (rare, but has been argued in overseas cases).
Merely being anxious, embarrassed, or panicked is not enough.
Your drink driving lawyer Sydney will often engage medical experts to verify your condition or cross-examine police on whether they followed proper procedure, such as providing adequate instruction or opportunity to comply.
 
6. Police Procedure: Where Mistakes Create Defence Opportunities
Under NSW law, strict police procedures must be followed before a charge for refusing a breath test or analysis can stand:
Lawful Requirement: The officer must have a lawful basis to require the test (i.e. driver of a motor vehicle on a road).
Explanation: Police must clearly explain the requirement and warn of consequences of refusal.
Reasonable Time: You must be given a reasonable opportunity to comply.
Medical Assessment: If you claim illness or injury, police must consider obtaining medical evidence before proceeding.
If any of these steps were skipped or improperly documented, your PCA offence lawyer Parramatta can argue that the prosecution cannot prove the offence beyond reasonable doubt.
 
7. Interaction With Other Offences
Refusal charges often arise alongside other offences such as:
High-range PCA (s 110(5))
Negligent or dangerous driving (s 117)
Failing to stop or assist after an accident (s 146)
A refusal conviction counts as a major offence for sentencing and disqualification purposes. This means if you’re convicted of future drink driving offences, you’ll face increased penalties under the Road Transport Act’s repeat offender provisions.
 
8. Interlock Program Implications
If convicted of refusing a breath analysis, you will generally be subject to the Mandatory Alcohol Interlock Programunder Part 3, Division 2 of the Road Transport Act 2013 (NSW).
This means:
After serving your disqualification period, you must install an interlock device for a set time (usually 24 months).
You cannot drive any other vehicle during the program.
The costs of installation, maintenance, and removal are borne by you (approximately $2,200–$2,500).
Failure to comply results in additional disqualification and potential imprisonment.
 
9. Defence Strategies for Refusal Charges
Our drink driving lawyers Sydney regularly employ the following defence strategies:
Challenge procedural validity: Did police have proper grounds? Was the test conducted lawfully?
Prove reasonable excuse: Obtain medical or expert evidence.
Argue equivocal conduct: Was it truly a “refusal,” or did confusion cause non-compliance?
Negotiate alternative charges: Sometimes a refusal charge can be reduced to a lower-tier PCA if evidence supports partial compliance.
Pursue Section 10 dismissal: In first-offence or mitigating circumstances, argue for no conviction to preserve your record and licence.
 
10. Sentencing Considerations: What Judges Look For
When sentencing for refusal offences, NSW courts consider:
Your prior driving record and previous PCA offences.
Whether there was an accident or danger to the public.
Your attitude and cooperation with police.
The presence of a reasonable but mistaken belief (e.g., medical condition).
Steps towards rehabilitation (counselling, alcohol programs, etc.).
With strong representation, first-time offenders often avoid jail and secure a Conditional Release Order (CRO) or Community Correction Order (CCO) rather than imprisonment.
 
11. How National Criminal Lawyers® Can Help
At National Criminal Lawyers®, we’ve defended countless clients charged with refusal breath test NSW offences, from routine roadside stops to post-accident investigations.
Our team will:
Examine whether police followed correct legal procedures.
Gather evidence to prove you had a reasonable excuse.
Negotiate charge reductions with police prosecutors.
Advocate for non-conviction outcomes where appropriate.
Handle all court appearances and interlock applications.
We understand how one mistake can threaten your career, licence, and livelihood. Our goal is to protect all three.
 
Conclusion: A Split-Second Decision Can Cost Years
Refusing a breath test might feel like a way to avoid trouble, but in NSW, it’s one of the most serious traffic offences short of dangerous driving.
The law assumes refusal equals guilt, and courts treat it that way. However, with skilled advocacy, procedural flaws or genuine excuses can make all the difference.
If you’ve been charged with refusing a breath test or any drink driving-related offence, don’t face court alone. Contact National Criminal Lawyers®, Sydney’s most trusted drink driving lawyers and PCA offence lawyer Parramatta team.

📞 Call 1800 CRIM LAW 

We’ll fight to protect your record, your licence, and your future.