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Clause 16, Schedule 3 Road Transport Act 2013
Refusing or Failing to Submit to a Breath Test or Analysis

Refusing or Failing to Submit to a Breath Test or Analysis is an offence under Clause 16, Schedule 3 of the Road Transport Act 2013.

To establish the offence, the prosecution must prove beyond reasonable doubt that you refused or failed to submit to:

  1. A breath test
  2. A breath analysis
  3. An oral fluid test, or
  4. A sobriety assessment

The maximum penalty in the case of a roadside breath test, oral fluid test or sobriety assessment is a fine of $1,100.

The maximum in the case of a breath analysis where it is your first major traffic offence in 5 years is:

  1. 18 months in prison
  2. A 9 month licence disqualification

Which can be reduced to 6 months, followed by

  1. 2 years of driving with an interlock device installed to your vehicle, and
  2. A fine of $3,300

Alternatively, the court can ‘exempt’ you from the interlock requirement and impose up to:

  1. 18 months in prison
  2. A 3 year licence disqualification which can be reduced to 12 months, and
  3. A fine of $3,300

If it is your second or more major traffic offence in the past 5 years the maximum penalty is:

  1. 2 years in prison
  2. A 12 month licence disqualification which can be reduced to 9 months, followed by
  3. 4 years of driving with an interlock device installed to your vehicle, and
  4. A fine of $5,500

Alternatively, the court can exempt you from the interlock requirement and impose up to:

  1. 2 years in prison
  2. A 5 year licence disqualification which can be reduced to 2 years, and
  3. A fine of $5,500

However, there will be no criminal record, licence disqualification or fine where the court deals with you by way of:

  1. A Section 10(1)(a) dismissal, or
  2. A Conditional release order without a conviction

You are not guilty of the offence if you are able to persuade the court that you were unable to comply due to a medical condition.

If you require the services of a traffic defence team that specialises in representing clients for cases under the Road Transport Act, call Sydney Criminal Lawyers today on (02) 9261 8881 to arrange a consultation.

Our team is vastly experienced in advising and representing clients in traffic law cases, and will fight to ensure you achieve the optimal result in the circumstances.

We offer fixed fees for all traffic cases, and a free first conference for those who are going to court.

The Legislation

Clause 16, Schedule 3 of the Road Transport Act 2013 is Refusing or Failing to Submit to a Breath Test or Analysis and reads as follows:

Refusing or Failing to Submit to a Breath Test or Analysis

(cf STM Act, ss 13 (2) and (3),15 (4) and (5), 18B (2) and (3) and 29 (1) and (3))

(1) A person must not, when required to do so by a police officer under this Part, refuse or fail:

(a) to submit to a breath test under Division 2 in accordance with the officer’s directions, or

(b) to submit to a breath analysis under Division 2 in accordance with the officer’s directions, or

(c) to submit to an oral fluid test under Division 3 in accordance with the officer’s directions, or

(d) to submit to a sobriety assessment under Division 5 in accordance with the officer’s directions.

(2) It is a defence to a prosecution for an offence against subclause (1) if the defendant proves to the court’s satisfaction that the defendant was unable on medical grounds, at the time the defendant was required to do so, to submit to the test, analysis or assessment concerned.

The penalties

Maximum penalty:

(a) in the case of a breath test, oral fluid test or sobriety assessment–10 penalty units, or

(b) in the case of a breath analysis–30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence).

Why Sydney Criminal Lawyers®?

Choosing the right legal team to defend your reputation and interests can be a difficult process.

However, it is always important to look at a firm’s experience and results when making this decision.

At Sydney Criminal Lawyers®, we have extensive experience defending and winning some of the most complex traffic matters – so you can rest assured that you are in safe hands.

Our traffic law specialists will take the time in every case to carefully scrutinise all the evidence in order to identify problems with the prosecution case at an early stage in the proceedings.

Where issues are found, our lawyers will write to the prosecution asking to have the charges dropped on this basis – often sparing our clients the considerable time and expense associated with defended hearings.

However, should your matter proceed to court, our senior lawyers will represent you and present a strong defence case to maximise your chances of being found ‘not guilty.’

Our senior lawyers are highly skilled advocates who have been recognised for their expert knowledge of the traffic law, as well as their ability to obtain excellent results in difficult cases.

We can assist you in avoiding the harsh penalties imposed by the law if you simply wish to plead guilty – in these cases, our experienced advocates can prepare and present compelling sentencing submissions which focus on any positive factors of your case.

For the best defence in your case, get the experts on your side today. Call us now on (02) 9261 8881 and book your FREE first conference with our traffic law specialists.

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