No Convictions Recorded for Refusing Roadside Drug Test

Jack Leitner appeared on behalf of a 45 year old Blaxland man at Katoomba Local Court who was charged with offences of Refuse or Fail to Submit to Oral Fluid Test and Refuse or Fail to Provide Oral Fluid Sample. As a result of our persuasive submissions on sentence, our client escaped criminal convictions for both matters, saving his licence from a potentially lengthy disqualification.

Incident at Blaxland, NSW.

At about 1:48pm on Tuesday 16 November 2021, our client was stopped by the police for the purposes of a random alcohol and drug test. He was asked to produce his licence, which he did. He was then subject to a breath test which returned a negative result.

He was then subject to drug oral fluid test, requiring him to place the sample collector in his mouth and wipe it on his tongue. Our client refused and instead licked his finger and placed it onto the testing swab, which was not permitted. After being told by the Police that the test could not be performed in this way, our client again refused to participate in the test, wrongly claiming that it was unlawful for the police to make him put anything in his mouth.

Following our client’s refusal to be subject to an oral fluid test, our client was arrested for the purpose of secondary oral fluid test and taken to the Police Drug Truck for a drug analysis to be conducted. Our client was cautioned and asked a number of questions, following which our client again refused to provide a sample of oral fluid for analysis. Our client was issued with a 24 hour Prohibition Notice, prohibiting him from driving for a period of 24 hours and was later charged by the Police.

Charge at Katoomba Local Court

Following our client’s refusal to submit to drug testing as required, our client was subsequently charged with offences of Refuse or Fail to Submit to Oral Fluid Test Refuse or Fail to Provide Oral Fluid Sample to be determined at Katoomba Local Court.

Our client contacted Australian Lawyers and Advocates shortly after his interaction with the police and sought advice from our highly experienced lawyers and advocates. From the outset, it was clear that our client had no lawful basis upon which to have refused the tests and that his claims that the police had no right to subject him to a drug test were incorrect. Having realised his mistake, our client engaged Australian Lawyers and Advocates immediately.

Our client was a respected member of his community and did not drink, smoke nor take drugs. He had never been the subject of a drug test by the police and this likely impacted upon his misunderstanding of the requirement that he be subject to a roadside drug test. To help substantiate our client’s claims that he was not a drug user and that his decision to refuse to be drug tested was not motivated by an attempt to hide or circumvent detection of drugs in his system by the police, our client was referred to an immediate urinalysis through his doctor. Although a negative test could not be used in court as a defence, a negative test supported our client’s claims, and that of his character referees that he was not a drug user and did not take drugs in the lead up to his apprehension by the police.

Our client was referred to a Traffic Offender Program and various character references and other material were obtained in preparation for sentence.


Our preparation of our client’s case commenced very shortly after our client refused to undertake his drug test. Even though our client had not yet been charged, our client’s decision to act immediately and engage our team of astute and highly experienced lawyers and advocates was a very important one. By advising our client that he had committed offences and was likely to be charged, we set to work on our client’s case, referring our client to a urinalysis to confirm our client’s claims that he had not taken drugs in the time prior to being pulled over the police.

Our client was charged a few weeks later and we again set to work on our client’s case. Character references and other material was obtained and our client completed a Traffic Offender Program. We then prepared detailed and persuasive submissions on behalf of our client.

Our persuasive submissions persuaded the Magistrate to dismiss both charges against our client without convictions being recorded against him. As a result, our client was spared potentially significant criminal punishment including losing his licence for a lengthy period of time. Our client was ecstatic with this result and was able to move on with his life, and his ability to continue driving.

Why Choose Australian Lawyers and Advocates?

Drink and drug driving matters are serious offences. This case highlights the importance of engaging lawyers who are highly knowledgeable and experienced criminal law lawyers and advocates.  It is important that you consult with an experienced criminal defence lawyer as soon as possible after you have been charged with or are likely to be charged with an offence. Many law firms claim to be ‘the best’ or ‘leading’ firms. At Australian Lawyers and Advocates, we let our results, reputation and high level of client service and satisfaction speak for themselves.

The content contained within this guide is expressed as a general guide as to this area of law and is not intended to contain legal advice specific to an individual’s case. If you, or someone you know has been charged with a criminal offence and requires legal advice, do not hesitate to contact Australian Lawyers and Advocates to discuss any criminal law or traffic law matters further.


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