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Random Breath Tests in NSW: Your Rights When the Lights Flash

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Random Breath Tests in NSW: Your Rights When the Lights Flash

 

Scenario, your driving home one night from a mate’s house, music on, windows down. You see blue lights flashing up ahead. Your heart sinks as you are waved into the RBT lane by police, saying “Can I see your licence…blow into this”.

Six million RBT tests are carried out in NSW each year, so here’s exactly what to do when your pulled over next, explained by a Criminal Defence and Traffic Lawyer.

At Rep-Revive Criminal Lawyers, we specialise in defending clients against drink driving charges, often identifying procedural flaws that can lead to dismissals or reduced penalties. 

 

1. Police do not require suspicion of Drugs or Alcohol for an RBT

Under Schedule 3 of the Road Transport Act 2013, police are authorised to conduct an RBT if they hold a reasonable belief that you were driving or attempting to drive a motor vehicle on a public road.

What this means in the real world: any driver in NSW can be lawfully required to submit to an RBT at any time on public roads.

(Note: If the RBT occurred at your home or your vehicle was not turned on, we strongly advise consulting a lawyer, as this may raise valid grounds for challenge).

 

2. The Initial Roadside Breath Test and Its Implications

Roadside Breath Tests can then be administered by police e.g. “blow into this tube” or “count from 1 to 10 out loud”.

Police will then get a preliminary reading for the content of alcohol in a person’s bloodstream ‘Blood alcohol content’ (BAC).

Licence / Vehicle Type	Legal BAC Limit (%)
Learner (L) & Supervising a Learner	0.00
Provisional (P1 & P2)	0.00
Full licence (C)	< 0.05
Heavy vehicle (13.9t+)	<0.02
Bus/taxi/ride-share driver	<0.02

 

If the reading is greater than the Legal BAC limit for your specified driver’s licence, you will be placed under arrest pursuant to Schedule 3, Section 4 of the Road Transport Act.

This is a standard procedure, but it does not automatically result in charges and police must follow additional steps.

(Note. for drug driving an oral fluid test is administered by scraping the tongue with a testing device which detects illicit drugs present in the person’s system).

 

3. The Evidentiary Breath Analysis Test

Following arrest, you will be transported to a police station or a mobile testing unit ("Booze Bus") for a Breath Analysis Test (BAS).

This involves exhaling into a calibrated instrument, which produces a printed result detailing your Blood Alcohol Content, and is seen as more accurate than a roadside Breath Test.

After a few minutes a reading will be printed out by the machine (like a receipt) which will display the results of your BAS.

This BAS reading forms the primary evidence in court and is presumed accurate unless you can demonstrate otherwise through expert analysis or procedural errors.

 

IMPORTANT NOTE- the strict 2 hour time limit

The Road Transport Act 2013 Schedule 3 Section 2 contains a very clear protection for people arrested following a failed Roadside Breathe Test.

The police only have 2 hours to take you to the Booze Bus or to drive you to the police station for a BAS.

This is a strict requirement, with Section 1 of the Road Transport Act stating:

“A police officer cannot require a person to submit to a test, analysis… at any time after the expiration of the relevant period (which is 2 hours)…”

If police fail to conduct the BAS within 2 hours of arresting you after the roadside breath test, then they are not allowed to force you to take the test.

If the BAS is not administered within this timeframe, police cannot compel you to take the test, and any results obtained afterward cannot support charges for Prescribed Concentration of Alcohol (PCA) offences. This includes:

• High-Range PCA: BAC of 0.15 or higher.
• Mid-Range PCA: BAC between 0.08 and less than 0.15.
• Novice Range PCA: BAC of less than 0.05, applicable to provisional license holders.

HOWEVER, a separate charge of ‘Drive Under the Influence’ under Section 112 Road Transport Act can still be pursued by police.

This charge is commonly used by police when they are unable to get a proper reading of a person’s BAC but can still prove they were under the influence of alcohol (or drugs).

A DUI requires the police to prove beyond reasonable doubt that their own observations of the person and or the person’s own conduct. E.g. if you were stumbling, made admissions, drove dangerously etc.

These charges are generally more challenging for the prosecution to prove beyond reasonable doubt.

 

4. Refusing an RBT or BAS: When Is It Permissible?

Refusing to provide a sample is an offence, carrying a $1,100 fine and penalties equivalent to a High-Range PCA conviction, including potential imprisonment.

DO NOT REFUSE TO TAKE AN RBT WITHOUT A LAWFUL DEFENCE.

However, you may lawfully refuse if:

• The Test Is Outside the Time Limit- If more than 2 hours have passed since the stop, you are entitled to decline, citing Schedule 3 explicitly. “Officer, the legal timeframe has expired under Schedule 3. I decline to submit to a breath test.”
• Medical Grounds Apply- Conditions preventing a sufficient sample (such as respiratory issues) may serve as a defence, provided you can substantiate it with reliable medical evidence.

 

Charged with a Drink Driving Offence?

Stop worrying about your charges and take action. Call Rep-Revive Lawyers!

📞 (02) 9198 1996

🌐 www.reprevivecriminallawyers.sydney

Our team at Rep-Revive Criminal Lawyers has a proven track record advocating for clients for Traffic and Criminal law matters.

We know the law and are always in your corner!