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A person who refuses or fails to provide an oral fluid sample, without reasonable excuse or fails to submit to provide a blood sample after refusing to give an oral sample is guilty of an offence.
If you are unable to provide a sample of your oral fluid you will be ordered to provide a blood sample. The blood sample must be taken within 4 hours of the driving, or the police cannot rely on it in court. The police will take you to a hospital to have the sample taken. The analytical laboratory will analyse the sample to check for the presence of any drug.
The Law in relation to Refuse to provide oral fluid sample or refuse or fail to submit to providing a blood sample when unable to provide an oral fluid sample is found in section clause 17, Schedule 3 of the Road Transport Act 2013 (NSW) which states:
“A person must not, when required to do so by a police officer under this Part, refuse or fail:
to provide an oral fluid sample under Division 3 for an oral fluid analysis in accordance with the directions of the officer”
For a first offence of Refuse to provide oral fluid sample offenders can be punished with a maximum fine of $3300, Automatic licence disqualification for 12 months, with the discretion of the magistrate to reduce licence disqualification to a minimum period of 6 months.
The penalties increase for first offenders who fail to give urine or blood to a possible prison sentence of 18 months and an automatic licence disqualification of up to 3 years with the discretion of the magistrate to reduce licence disqualification to a minimum period of 12 months (in the case of refuse to give blood sample) and 6 months (in the case of refuse to give urine sample).
For a second or subsequent offences of Refuse to provide oral fluid sample these offenders can be punished with a to a possible prison sentence of 18 months, a maximum fine of $5500 and an automatic licence disqualification for 5 years with the discretion of the magistrate to reduce the licence disqualification to a minimum period of 12 months.
The penalties increase for second or subsequent offenders who fail to give urine or blood to a possible prison sentence of 2 years and an automatic licence disqualification of up to 5 years with the discretion of the magistrate to reduce the licence disqualification to a minimum period of 2 years (in the case of refuse to give blood sample) and 12 months (in the case of refuse to give urine sample).
Please note that the penalties mentioned are reserved for the worse case offending and are unlikely to be the penalty you receive.
In NSW, a court can impose any of the following penalties of:
The burden of proof lies on the Prosecution. That being the case the prosecution must prove the Accused’s guilt beyond reasonable doubt being:
· That you failed to provide an oral fluid sample, without reasonable excuse or
· failed to submit to provide a blood sample after refusing to give an oral sample.
Some of the possible defences available for those charged with Refuse to provide oral fluid sample or refuse or fail to submit to providing a blood sample when unable to provide an oral fluid sample can include:
· It is a defence if the drug was prescribed by a medical practitioner and was taken in accordance with a medical practitioner’s prescription, or for a codeine-based medicinal drug, if it was purchased from a pharmacy and has been taken in accordance with the manufacturer’s instructions.
· If you were compelled to act in a certain way due to the circumstances, or the threats of another you may be able to argue “Duress”;
· If your actions were necessary to prevent a greater harm from occurring, you may have the defence of “Necessity”;
Ø For first offenders of Refuse to provide oral fluid sample 65% received a fine.
Ø For second and subsequent offences or Refuse to provide an oral sample 14% received prison, 14% received an ICO whereas 43% received a fine
Ø For first offenders of fail to submit to providing a urine sample 60% received a fine.
Ø For subsequent offenders of fail to submit to providing a urine sample 43% received a good behaviour bond.
Ø For first offenders of fail to submit to providing a blood sample 56% received a fine whereas 25% received a good behaviour bond.
For subsequent offenders of fail to submit to providing a blood sample 33% received full time imprisonment whereas 67% received a good behaviour bond.
For Refusing to Provide a oral or fluid sample, Rep-Revive Criminal Lawyers® offers the following options:
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There are several reasons to engage Rep-Revive Criminal Lawyers®:
At Rep-Revive Criminal Lawyers® we understand the gravity of a criminal charge on your reputation. Thus, we work with the utmost diligence and fervour to restore any dints to our client’s repute. We fight for your rights and liberty earnestly, and for the best results, irrespective of the intensity of the matter. All these factors have made us known in the industry as always being in our client’s corner.
Rep-Revive Criminal Lawyers® is driven by positive outcomes and defend your case with skills which have been sharpened by years of experience. You will be dealing with lawyers who are proficient at their craft and will defend your case with rigour and an aim to have the matter withdrawn, downgraded, dismissed or the minimal penalty available at law imposed.
Rep-Revive Criminal Lawyers® are adept in all forms of advocacy and will present your case in the most skilful manner in Court.
Irrespective of your decision in deciding the course of the case, you will be supported and guided by Rep-Revive Criminal Lawyers® who have been in the provision of legal service for over 21 years.
If you are charged with an offence, our team at Rep-Revive Criminal Lawyers® are best suited for representing your case.
Please contact our office on 0419 998 398 or 0492 857 721 or email info@rpr5.sydney for more information. The first consultation is free.
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