Do you have the right to refuse a roadside breath test? The answer to this question is, it depends. When you’re being stopped by the police and they ask you to take the test, you might wonder if you can refuse taking it. Here’s your answer: you don’t have the right to refuse to take the test, but if you have a medical condition, you can validly do so.
The Australian Road Transport Act 2013 considers the refusal of taking a breathalyser test as a serious offence. Here, the police have the power to stop any driver and request a roadside breath test. Thus, you must comply with the lawful and reasonable directions of a police officer when instructed to provide a breath test.
However, the law on taking alcohol breath tests provides for an exception. You can validly refuse to take the test if you have medical reasons not to. This is the only reason for refusal under the Road Transport Act 2013. Now, let’s learn more about the roadside breath test and what the law says about it.
What Is a Roadside Breath Test?
A roadside breath test is a test that measures the amount of alcohol in a person’s breath. It is a quick and easy way to determine if someone is driving their motor vehicle under the influence of alcohol. In Australia, police officers conduct roadside breath tests. The officer will ask the driver to blow into a handheld device called a breathalyser.
The breathalyser measures the amount of alcohol in the breath. It also provides a reading in grams of alcohol per 100 millilitres of breath (g/100mL). Through this test, the NSW government can curb deaths and accidents caused by drunk drivers. That’s why police authorities have the prerogative to conduct tests to make sure that the blood alcohol limit of drivers is well within the legal limit.
Do You Have the Right To Refuse a Roadside Breath Test in NSW?
What they charge you for refusing a breathalyser test for the first time in NSW? If a police officer asks you to take a breath test, oral fluid test, sobriety assessment, or breath analysis, you must not refuse or fail to do so. Under the Road Transport Act, the penalties for refusing or disobeying a police officer’s direction to take a test are the following:
- 10 penalty units for a breath test, oral fluid test, or sobriety assessment
- 30 penalty units or imprisonment for 18 months (or both) for a breath analysis (first offence)
- 50 penalty units or imprisonment for 2 years (or both) for a breath analysis (second or subsequent offence)
In relation to these penalties, the following violations are also penalised by the law under Section 18 of the Act:
- A person must not willfully alter the concentration of alcohol in the person’s breath before they submit to the breath test.
- A person must not willfully introduce or alter the amount of a drug in the person’s blood or urine from the time that the police required them to submit to the breath test to the time when the person submits to that assessment.
The penalty for these violations may either be:
- First offence: 30 penalty units or 18 months imprisonment or both; or
- Second and subsequent offence: 50 penalty units or 20 months imprisonment or both.
If you couldn’t take the test due to a medical condition, you must present convincing proof to the court. Schedule 3, Division 6 of the Road Transport Act 2013 (NSW) sets out these penalties.
Do You Have the Right To Refuse a Roadside Breath Test: FAQs
Q: What happens if I refuse a random breath test?
A: Refusing a breath test is a criminal offence, and you can be charged with refusing to provide a breath sample. The consequences of refusing a breath test vary depending on the state or territory. However, you can get a fine and lose your licence.
Q: Can I challenge a breath test result?
A: Do you have the right to refuse a roadside breath test? The answer is usually ‘No.’. However, you can challenge a breath test result if you believe that the officer conducted the test improperly or that the result is inaccurate. If this is the case, you may be able to escape conviction for failing to provide a sample of your breath.
Q: What are my rights during a roadside breath test?
A: A lot of drivers may ask themselves, ‘Do I have the right to refuse a roadside breath test?’ While you don’t have the right to refuse one, you can ask the police officer:
- To identify themselves;
- Provide their badge number; and
- A copy of the breath test results.
Q: What’s the legal blood alcohol content (BAC) limit in Australia?
A: The legal blood alcohol content for driving in Australia is 0.05%. This means that a driver’s BAC must be below 0.05% in order to be legally allowed to drive. If the breathalyser reading is positive, the driver will be arrested. Afterwards, they are taken to the police station for a more accurate breath test.
Q: Can the police officer conduct a second test if the breathalyser reads negative?
A: Yes, if you undergo a breath test and the preliminary breath test result is negative, a police officer can request that you undergo a second test. They usually do this if they believe that:
- You are under the influence of drugs, and
- You are a learner/probationary driver or holder of a special licence that requires a zero blood alcohol reading.
Q: What should I do if I am asked to take a roadside breath test?
A: If you need to take a roadside breath test, you should comply with the request unless you think the police officer is making an unlawful request. If you are unable to take the test for genuine reasons, you must be able to provide proof that you cannot provide a sample due to unavoidable circumstances.
Seek Help From Our Traffic Offence Lawyers
We hope this article has helped you answer the question, ‘Do you have the right to refuse a roadside breath test?’ Roadside breath tests are an important tool for law enforcement to prevent drunk driving. However, there are some legal implications associated with refusing a roadside breath test. If you are asked to take a roadside breath test, it is important to know your rights and options.
JB Solicitors is a leading traffic offence law firm in Australia. We have a team of experienced traffic lawyers who can help you with any traffic offence matter. This includes refusing a roadside breath test. Here are some ways we can help you in a legal dispute arising from a roadside breath test:
- Advise you on your legal rights and options about drink driving offences or high-range drink driving offences;
- Represent you in court;
- Negotiate with the prosecution on your behalf about breath or blood test results; and
- Help you get the best possible outcome for your drink driving offence case.
Message us today if you have more questions aside from, ‘Do you have the right to refuse a roadside breath test?’
Last updated: 21 January 2025
