A person cannot refuse breath analysis. After an arrest for a traffic violation, breath analysis is usually required, and police have the authority to enforce this under the Road Transport Act 2013.
The driver is not allowed to refuse on the ground that he would like to speak to a lawyer first before submitting to the analysis. This article will provide a brief overview about refuse breath analysis in NSW and its legal consequences.
The reason a police officer is likely to ask for a breath test comes under the Road Transport Act. The police officer must have reasonable cause to think that a person is under the influence of alcohol and may ask for a breath test if the person was or is driving a motor vehicle on a road related area or a road and was sitting in the driver’s seat and the car was either in motion or just about to go into motion.
Also if the driving licence holder was in the seat next to a learner licence holder who was doing the driving on a road related area or a road and was suspected of being under the influence of alcohol.
Breath analysis, as defined by Road Transport Act 2013, means a test carried out by a breath analysing instrument for the purpose of ascertaining, by analysis of a person’s breath, the concentration of alcohol present in that person’s breath or blood.
It must be conducted by a person employed by the government or a person prescribed by the rules. The breath analysing instrument must be the type of instrument approved by the Governor by an order which is duly published in the Gazette.
There are adverse effects if a person refuses to take the breath analysis. A police officer may arrest, take the person to the police station or to any other place that is considered by the police proper, and detain the person at the police station so that he will be subjected to a breath analysis.
A police officer is duly authorized by law to make the arrest even without obtaining a warrant and may use force that reasonably and necessary under the circumstances to make the arrest and bring the offender to the police station.
However, it is a defence for the driver that he was unable to submit to the breath analysis due to medical reasons existing at that time, provided he submits sufficient proof to the satisfaction of the court.
There are instances that the offender may not be forced to submit to breath analysis even if the police officer has reasonable ground to believe that the alcohol level present in the offender is already beyond its limits.
Thus, a police officer cannot require to an analysis if a person has been admitted to the hospital for medical treatment, or if it appears to the officer that it would, by reason of injuries sustained by that person, be dangerous to the person’s medical condition to submit to the test, analysis or assessment or provide the sample, or at any time after the expiration of the relevant period (if any) for the test, analysis, assessment or sample concerned, or at the person’s home. If these circumstances are present, the offender may validly refuse to submit to a breath analysis.
The penalties for refusal to submit to breath analysis are the imposition of fines and imprisonment.
The maximum penalty that can be imposed upon the offender in the case of refusal to undergo a breath analysis is 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).
This means that the court has the discretionary power, depending on the circumstance present in the case, to impose either one or both of the penalties for the first and second offence.
If you have been charged with a traffic offence or are under Police investigation, it is important that you seek legal advice. Contact our Criminal lawyers .