Refuse to provide oral fluid sample or refuse or fail to submit to providing blood sample when unable to provide an oral fluid sample

If you agree that you have committed the offence and the police are able to prove all the elements of the offence, it is best to plead guilty at an early opportunity to receive the maximum discount. Currently the maximum discount available for an early plea of guilty is 25% of the sentence.

Furthermore, the early guilty plea shows the Court that you have remorse and contrition for your actions.

Our Lawyers at National Criminal Lawyers work closely with you to ensure that we obtain all necessary paper work at increasing the chances of obtaining a non-conviction or section 10.

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.

If you decide to plead not guilty you will need to prepare to go to a Defended Hearing.

A defended hearing is where all the witnesses of that case are called to give evidence. The witnesses are both examined by the prosecution and tested by your defence lawyers.

National Criminal Lawyers are experts at these hearings and can advise you on what the police must prove beyond reasonable doubt.

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”;

The Courts are not bound by statistics however there must be reasonable consistency in sentences. A Magistrate or Judge should have regard to what has been done in other cases. In Green [2011] HCA 45, the plurity judgement of French CJ, Kiefel and Creennan JJ stated:

“Equal Justice” embodies the norm expressed in the terms “equality before the law”. It is an aspect of the rule of law.

For first offenders of Refuse to provide oral fluid sample 65% received a fine.

For second and subsequent offences or Refuse to provide an oral sample 14% received prison, 14% received an ICO whereas 43% received a fine

For first offenders of fail to submit to providing a urine sample 60% received a fine.

For subsequent offenders of fail to submit to providing a urine sample 43% received a good behaviour bond.

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.

In NSW, a court can impose any of the following penalties for an Wounding or grievous bodily harm with intent charge.

• Prison sentence
• Home Detention
• Intensive correction order (previously periodic detention)
• Suspended sentence
• Community service order (CSO)
• Good behaviour bond
• Fine; or
• Section 10

However, from the 24 September 2018 new penalty’s will be replacing the above. They are as follows:

• Full time Imprisonment
• New ICO (ICO) with a home detention condition available
• New Community Correction Order (CCO)
• Fine; or
• New Conditional release Order (CRO)

Our client was pulled over after police saw her performing an illegal U-turn. She refused to provide an oral sample and was charged accordingly. In Court we tendered and made submissions on character references and a letter of apology. She was discharged from the charge on the condition that she entered into a non-conviction good behaviour bond.