A fail or refuse breath analysis charge
In this Manly refuse breath analysis case study, Joshua Boorman appeared at Manly Local Court on a charge of failing or refusing a breath analysis. He explains that this charge is used when police cannot obtain a sufficient breath or blood sample from a suspected drink driver, so they cannot work out the reading.
Joshua describes it as a serious charge. Because the true reading is unknown, he says it is effectively treated like a high range offence, and that the penalties are the same as for high range drink driving.
A mental health crisis
The incident happened in October 2022. The client has a long history of ADHD, anxiety and depression. For most of 2022 her mood had been stable and she had not been taking her medication. In the days before the incident her mood dropped, and on the day she suffered a significant emotional breakdown.
She took her prescribed ADHD medication and antidepressant, which she had not done for most of the year, and suspects she took more than prescribed. She had a glass of wine at lunchtime and, later in the afternoon at her partner’s place, mixed herself gin and tonics. She then drove a couple of kilometres towards the shops to get an early dinner.
Pulling over to sleep it off
A concerned witness saw her swerving all over the road and called police. A short distance down the road, she realised she should not be driving, pulled over, parked and decided to sleep it off.
Joshua gives credit to the police. She was not in a good state of mind and was quite hysterical, and they recognised she was having a mental health episode. She was not aggressive or belligerent, which he says is often the case in these matters, but she was rambling and sceptical about whether to provide a sample. After a number of attempts, police charged her with the refusal offence. They treated her with dignity, called her family to collect her and took good care of her.
Afterwards, she wrote the police a letter of apology and sent them a box of chocolates, which Joshua says is unusual in his line of work.
Preparing for sentence in this Manly refuse breath analysis case study
A guilty plea was entered. The client then:
- re-engaged with her psychiatrist and obtained an updated letter;
- completed the Traffic Offenders Program, with a detailed account of what she learned;
- provided a letter of apology to the court, along with the apology she sent to police;
- provided heartfelt letters of support from her partner, her mother and a close friend; and
- provided a map showing the short distance she drove.
The magistrate asked a number of questions about her mental health and medication, and Joshua says there were good answers to each. She had an exceptionally good record, with one speeding offence in about 17 years and no criminal history.
The outcome
Joshua pushed for the minimum disqualification for this type of offence, which he says is 6 months. She received:
- the 6-month minimum disqualification, backdated to mid-October (about six weeks already served);
- a mandatory interlock order for 24 months; and
- a heavily reduced $750 fine, because of her strained finances.
Joshua says she was very lucky to receive the minimum penalties for a serious offence. Her mood has stabilised and she has re-engaged with treatment.
Key general information (NSW)
General information only, not legal advice, as at October 2026. Every case turns on its own facts.
- Refusing to provide a breath or other sample: For a first offence, Transport for NSW’s Alcohol Interlock Program page lists a disqualification of 6 to 9 months followed by an interlock period of 24 months; for a second or subsequent offence, 9 to 12 months followed by 48 months (as at October 2026).
- Police suspensions and court disqualifications: Transport for NSW explains that police can suspend a licence on the spot for certain offences, including driving with a prescribed concentration of alcohol, driving under the influence of alcohol or drugs, some serious speeding offences and hoon offences.
- Sentencing options: At the lower end, a court can find an offence proved but not record a conviction, either by dismissing the charge or by making a conditional release order (CRO) without conviction.
- The court process: Drink and drug driving charges in NSW are usually dealt with in the Local Court.
Further reading and related videos
Boorman Lawyers has more on appearing at Manly Local Court, NSW drink driving offences and NSW alcohol interlock laws. Its Sydney site covers drink driving matters across Sydney courts.
On this site, see a Manly high range case and a Lismore case involving mental health, or browse all NSW and drink driving videos.
For people who are preparing to plead guilty without a lawyer, DIY DUI’s guide to drink and drug driving charges at Manly covers the local court and plea process. (DIY DUI is a self-help program for people preparing their own guilty plea. It is not legal representation and is not part of Boorman Lawyers.)
Read the video transcript
G'day it's Josh Boorman here outside Manly Local Court have just appeared on a uh a matter which involves a fail or refuse a breath analysis charge so this is basically where the police are unable to obtain a sufficient breath or blood sample from a suspected drink driver so when they're unable to ascertain what their blood alcohol reading is they can't obtain a sample but they generally rely on charging the person with that fail or refuse a breath analysis
This charge is a serious charge because they can't ascertain what the particular reading is it's effectively like putting them straight into a high range category so um that's the matter we dealt with here today there were a number of mental health factors at play here um and I'll discuss those with you discuss how we um went about preparing and presenting the matter before court today and then we'll discuss about what the the outcome was so basically this was a matter that occurred six weeks ago in October 2022 our client on that particular day had been experiencing some significant emotional health issues due to a number of personal stresses in her life a client is actually a person who has a history of pre-existing mental health issues she has suffered with ADHD anxiety
Depression for a number of years so these mental health issues were certainly nothing new to her but the thing that was out of or unusual was the fact that for the last or the better part of 2022 she has been stable of her mood she has not been taking her medication for these mental health diagnoses and she's been doing quite well however in the days prior to this incident we'll start falling off a bit she wasn't feeling good she was feeling very low of mood
On this particular day in question it all sort of started falling apart she suffered a significant and emotional breakdown and um she chose to take her medication something she hasn't done for the better part of this year she had a bit of a stockpile left over because she hadn't been taking it so um yeah she tells me she suspects that she probably took more than what she was prescribed to of the the medication of Ritalin and fluoxetine which is for antidepressant it's an antidepressant medication she then went
Had a glass of wine at lunchtime went back to her partner's place in the late afternoon and mixed self-poured [unclear] for gin and tonic drinks um she was not in a good frame of mind and then made a very foolish and stupid decision to get into the car and drive relatively short distance a couple of kilometres down the shops to get some early dinner um she was seen to be driving erratically by a concerned witness who called the police she was said to be swerving all over the road
Um it dawned on her a short distance down the road that she shouldn't have been in the car she shouldn't have been driving so she did pull over to the side of the road she parked a vehicle and decided to sleep it off the police arrived they questioned her credit to the police they did a fantastic job she was not in a good state of mind she was quite hysterical clearly the police realised that there was some emotional mental health issues that were going on
She and she was suffering an episode and they were very kind to her very caring to her she was not aggressive she was not belligerent which is usually the case with these types of fail or refuse breath analysis matters sometimes get an offender who's very aggressive and tells the police where to go they don't want to follow their orders she wasn't like that she was more in a bit of a not a good frame of mind she was rambling on she was telling the police that she's sceptical whether she should do it or should do it after a number of attempts that they tried to get her to provide a sample of breath they were left with no other option
But to basically to [unclear] and charge her with the fail or refuse breath analysis which is um the charge that we dealt with here before court today but in aside from all that they were very caring and kind towards her they treated her with dignity and respect they were aware that she was not well of mind they called her family to come and get her and and took good care of her so and following on from her arrest she actually wrote them a letter of apology sent them a box of chocolates as well which is something unusual uh certainly in
That I see in my line of work most of my offenders are not happy with the police that uh they're being charged or the way they've been treated but this is a bit of an unusual case um so yeah she was charged with that offence a very serious offence because as I mentioned they cannot determine what the true blood alcohol reading was so they effectively treat it like a high range drink driving offence and the penalties for a fail or refuse breath analysis are exactly the same as a high range drink driving offence
So that was accepted a plea of guilty was entered our client did a number of things we advised her that she should go back get in touch with her psychiatrist get an updated letter get booked in re-engage with them and she's done that we got a letter from the psychiatrist she also did the Traffic Offenders Program we had a detailed account of what she learned from that course realised that her actions were inexcusable and dangerous and anything could have gone wrong
Thankfully she didn't have any passengers she didn't have a crash no one else was involved in the incident she got a number of letters she got we'll put a letter of apology to the court before the court which showed the court the letter of apologies she sent to the police her partner gave a good heartfelt letter of support so did her mother and her close friend and we also had a map to show the court just exactly the distance she'd driven it was a short distance
But nonetheless anything could have gone wrong in a state of mind that she was in on this particular day um the magistrate fired a number of questions at me during the um my submissions uh questioning her mental health uh medication um good answers to every question that was fired at us but the magistrate was satisfied with everything she heard she was also satisfied with the steps she's taken to re-engage with her treatment and her Traffic Offenders Program
To remorse before the court the good thing that was working in her favour was her traffic record was exceptionally good she's only had one speeding offence in um in about uh 17 years of driving so an exceptionally good record no prior criminal antecedent so that was something working in her favour the minimum disqualification for this type of offence is six months that's what we were pushing for and that's what we received the six months was backdated to the middle of October when the events occurred
So she's already done approximately six weeks off the road got about four and a half months left to serve but there is a mandatory interlock order that she will have to commit to for 24 months and due to her financial situation which is quite strained at the moment she was given a heavily reduced fine of $750 um there was no other um leveling up of penalties uh involved certainly the court has a whole range of penalties at their disposal it is a serious matter it is considered a serious offence
Our client was very lucky to escape with their minimum in relation to penalties that could have been given very relieved client I it's it's a completely out of character for her her mood is stabilised and mental health is stabilised she's re-engaged with treatment I think it's highly unlikely we'll ever see this this person who usually is very law abiding before the court system again thanks for tuning in here at Manly Local Court.
General information only, based on New South Wales law at the time of filming. Not legal advice — every case turns on its own facts. Past results don't guarantee future outcomes.
