Fail to Undergo

Breath Analysis

Lawyers NSW

What is Failure to Undergo Breath Analysis

Failure to Undergo Breath Analysis occurs when a person is caught driving a vehicle on a public road and where after returning a positive reading at a roadside breath test, subsequently then refuses or fails to provide a sample for analysis, without having a reasonable excuse, such as a specific medical condition which would prevent the collection of the sample.

This is a very serious offence, whose severe sentencing penalties are equivalent to those of High Range Drink Driving. It is often the case that long periods of disqualification, combined with hefty fines and potential imprisonment will result from such a charge.

Failure to Undergo Breath Analysis & The Law

This offence is governed under Division 2, Schedule 3 of the Road Transport Act 2013.

What the Prosecution need to Prove (Beyond a Reasonable Doubt):

  • The accused underwent a random breath test, producing a positive reading

  • The accused was subsequently placed under arrest and requested to be taken by Police back to the station for the purposes of undertaking a breath analysis.

  • The accused refused to undergo the breath analysis


Going to Court – “What am I looking at?”

Failure to Undergo Breath Analysis carries a maximum fine of $3,300 and an automatic disqualification period of 3 years. The Courts can reduce this disqualification period to 12 months. It also carries a maximum term of  18 months imprisonment.

If however, this is a second or subsequent major offence within 5 years, there is a maximum fine of $5,500 and 2 years imprisonment, with an unlimited maximum disqualification period. It carries an automatic disqualification period of 5 years, however, this can be reduced to a minimum of 24 months.

There is also a mandatory minimum period of 48 months using an interlock device for any second or subsequent offence.

What is a ‘Major Offence’?

A ‘Major Offence’ is a serious traffic offence and defined under Section 4 of the Road Transport Act 2013. It can include but not limited to, traffic offences such as:

  • Drink or Drug Driving

  • Negligent Driving causing death or grievous bodily harm

  • Driving recklessly

  • Police pursuit

  • Failing or refusing to provide oral fluid sample

Lawyer Call – here to help..

Being charged with Failure to Undergo Breath Analysis can be overwhelming due to the seriousness of the charge, and the implications this could have on your life, family and future career goals. At Lawyer Call, we seek to understand the exact details of the incident first and foremost.

Our expert Traffic Lawyers have extensive experience in conducting powerful pleas before a Magistrate, with in-depth preparation and gathering of the right documentation in support of your character, and addressing every possible avenue of mitigating the seriousness of this offence.

If you have been charged with this offence, please call our office immediately on 1300 LAW 111.


“I cannot begin to thank Paul for his tireless efforts with my case. Would recommend them anybody with a criminal matter their clear communication and expert advice got me my best possible outcome”


—  Casey, Nurse


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