Traffic Law

Refuse Breath Analysis

Most drink driving charges require evidence that a driver was intoxicated or had present in their blood a certain level of alcohol. However, there are some charges that do not require any proof of intoxication or blood alcohol content and even others where there is no proof that the person had consumed alcohol in the first place. The charge of Refuse Breath Analysis is one such charge. Our lawyers are experienced in representing people in all Courts for this type of offence.

The Law

Pursuant to the Road Transport Legislation, a person must not, when required to do so by a police officer, refuse or fail to submit to a breath analysis in accordance with the officer's directions.


The penalties for Refuse or fail breath analysis are set out below:


Maximum Fine


Minimum Interlock Period

Maximum Gaol 







1st offence


3 years

12 months

24 months

18 months







2 or more


9 months

12 months

48 months

2 years

Mandatory Interlock

In addition to disqualification periods, fines and any other form of punishment (such as imprisonment), the Court must also make a Mandatory Interlock Order for any offence of this kind, whether it is a first offence or second or subsequent alcohol-related major offence within a 5 year period.

Read our article on Mandatory Interlock Orders for more information.


Unlike most other drink driving charges, defending a charge of refuse breath analysis (or fail breath analysis) is not easy. There is a statutory defence to the charge (ie, a defence that is specified in the legislation) available, which is not easy to prove and further, may not always be in someone's best interests.

Pursuant to the Road Transport Act, it is a defence to this charge if the defendant can prove that he or she was unable on medical grounds to submit to the breath analysis. This defence generally requires expert evidence as to any condition that the defendant may suffer from that precludes them (or precluded them at the time) from submitting to an analysis. This becomes problematic, because even if the defendant is able to prove that the failure is due to a medical condition, they may later face a suspension from the RMS as a result of being medically unfit to drive, due to an inability to comply with a particular traffic law. 

Outside of this statutory defence, despite what is often argued by police and often accepted by the Courts, there is still some (but very limited) room to defend the charge on other grounds.

If you need assistance with a charge of Refuse Breath Analysis, our experienced lawyers can help. Contact us at your nearest Prime Lawyers office to speak to one of our experts today.

We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.

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