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Safe driving requires good judgment and constantly sharp concentration not only for your own driving behaviours, but also external factors such as weather and traffic conditions, and spontaneously changing situations on the road. Driving whilst under the influence of drugs and/or alcohol not only places your own safety at risk, but also the safety of other motorists.

Drink driving is a criminal offence. If a person is found to be above the legal blood alcohol concentration (BAC) limit whilst they are driving a vehicle, they will be charged accordingly. With this said, police have the power to stop drivers at random to test for drugs or alcohol, for what is commonly referred to as a ‘random breath test’ (RBT) or ‘mobile drug test’ (MDT). Further to this, police can arrest drivers who test over the legal limit for alcohol, or are found to be under the influence of drugs, whether prescription or prohibited.

If a person refuses to take part in or does not provide a sufficient sample for the test to work in an RBT, they may be charged for refusing to undergo a breath analysis. The person will be placed under arrest and taken to the police station using whatever force is reasonably necessary to do so, in order to take part in a comprehensive breath analysis.

For first time offenders, this offence carries a maximum fine of $3,300 and imprisonment for 18 months, and for repeat offenders, a maximum fine of $5,500, and imprisonment for 2 years. Similarly, if it is proved that a driver had drugs in their system whilst driving a vehicle, they may face fines of up to $2,200, an automatic 12-month licence disqualification and a sentence of imprisonment for up to nine months for a first time offence. Repeat offenders will attract higher penalties.

It is not an adequate defence to say that you wanted to consult with your traffic lawyer before you submitted your breath analysis sample and took part in the breath test. Even if a person wishes to consult with their lawyer, they cannot do so prior to taking the test. Relying on this argument will amount to refusing to take part in a breath analysis, and will constitute to being a criminal offence.

What are some of the ways in which you can be defended?

  1. Medical Reasons: If you have any valid medical reasons due to which you refused to take the breath test, you may be able to successfully defend yourself if you are able to prove the existence of the medical condition, and that it did in fact prevent you from being able to reasonably take the test. This defence can serve as a double-edged sword in some instances, because if the offender is able to prove failure to take a breath test on medical grounds, then their licence may be suspended by the Roads and Maritime Services on the basis that they are medically unfit to drive a vehicle. Therefore, the extent of relying on this defence should be carefully considered.
  2. Admission to hospital for medical treatment: A driver does not have to participate in a breath analysis test if they are admitted to hospital for medical treatment. In this instance however, the police can ask the treating officer for a blood test to be taken, to determine the BAC using this method instead, unless it would be medically dangerous or otherwise inappropriate to do so.
  3. The improper functioning of the machine: One more way in which your claim would be completely trustworthy is if you say that the machine that was faulty or was not working properly at the time when you took a breath test. This may be a difficult defence to fight by yourself, so it may be a good idea to have a traffic lawyer on your side who can speak with the police and determine whether this is a viable defence.


The penalties are imposed only after successful prosecution in court. A good traffic lawyer can be very helpful in mounting a successful defence. If the charges are successfully defended against, the court may dismiss them, and the defendant is found not guilty.


Sydney Criminal Defence Lawyers is a law firm that specialises in Criminal and Traffic Law. Our passionate and dedicated team of expert lawyers represent clients daily in the Local, District, and Supreme Courts of NSW.


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