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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.

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