Refuse Breath Analysis

These offences are committed by a person who was the driver of a motor vehicle on a public road and when required to submit to breath analysis either refuses or fails to provide a sufficient sample.

It is not a defence to refuse breath analysis on the basis that you wanted to seek legal advice before providing a sample for breath analysis.

Penalties – refuse breath analysis

The penalties for refuse breath analysis are the same as the penalties for high range PCA.

Regardless of how bad your traffic record is the court has a discretion whether to record a conviction against you for this offence. If the court decides to convict you for the offence it must disqualify you from driving for the minimum period set by the law. Similarly if a maximum period is set by law, the court cannot impose a greater period.

If the court does not record a conviction against you, the court cannot disqualify you from driving. Section 10 of the Crimes (Sentencing Procedure) Act allows a court that finds a person guilty of an offence the discretion not to impose a conviction against you.

The automatic period of disqualification is the period of disqualification that you can expect to receive unless you can show the court reasons why your licence should not be disqualified for this period.

The following penalties apply once the court decides that it intents to record a conviction against you for an incident leading you to refuse breath analysis:

1st major traffic offence

A maximum fine of $3,300.00
A maximum gaol term of 18 months
An unlimited maximum disqualification period
A minimum disqualification period of 12 months
An automatic disqualification period of 3 years

2nd or subsequent major offence within 5 years

A maximum fine of $5,500.00
A maximum gaol term of 2 years
An unlimited maximum disqualification period
A minimum disqualification period of 2 years
An automatic disqualification period of 5 years

Possible drink driving defenses

The law provides a defence to a prosecution for these offences if the defendant satisfies the court that the defendant was unable on medical grounds, at the time the defendant was required to do so, to submit to a breath analysis.

The police must also establish that you were the driver of a motor vehicle on a public road. There has been some instances where the police do not actually see the accused driving on a public road, but believe they were driving and subject the accused to breath analysis.

The police are not able to perform a breath test upon you once you have entered your usual place of abode. If the police do so, they are acting unlawfully and the subsequent breath analysis reading may be excluded leading to the dismissal of the offence.

Police have 2 hours in which to require you to undergo breath analysis from the time you were driving. It is not an offence if you refuse breath analysis outside this 2 hour period