Failure to provide a roadside breath test sample
1. Power to request a roadside breath test
A uniformed police constable may legally request a breath specimen for analysis if he or she has reasonable cause to suspect that:
- you are currently committing, or recently committed, a moving traffic offence;
- you have driven or attempted to drive or been in charge of a motor vehicle on a road or other public place with alcohol in your body; or
- you were driving, attempting to drive, or in charge of a vehicle involved in an accident.
This suspicion may arise before or after the vehicle is stopped. Note also that the police have liberal powers to stop drivers at random.
2. Power to arrest for failure to provide a roadside breath test
If you fail to submit to a roadside breath test or the test shows a breath alcohol level above 35 mg/ml, the police take you back to the police station for additional testing. (NB. Additional testing is required because the police use hand-held breathalysers for roadside stops, which sometimes provide inaccurate results -- and since the results cannot be relied on, they are not admissible as evidence in court proceedings.)
3. Reasonable excuse for failure to provide a roadside breath test
You may have a "reasonable excuse" for failing to provide a breath test sample, which would mean you should not be prosecuted. To prove the excuse is reasonable, however, the police -- and ultimately the court -- will ask you to produce med ical evidence of physical or mental infirmity.
In one case, a court found the accused's shortness of breath during a panic attack to be a reasonable excuse for failing to provide a breath specimen. In other cases, drivers with respiratory problems like emphysema and severe asthma were excused.
Waiting for legal advice does not constitute a reasonable excuse for failing to take a test at the roadside, however.
Even if the police act in bad faith and you did not drive, attempt to drive, or take charge of a vehicle under the influence of drink, you would not have a reasonable excuse to refuse a test.
Note also that while you may have a reasonable excuse not to take a breath test, you may still have to provide a blood or urine sample for analysis.
4. Failure to cooperate with a preliminary test
If you fail to provide a roadside breath test sample, the police may charge you with 'failure to cooperate with a preliminary test'. The maximum penalty for this offence includes four penalty points (to remain on your licence for four years) or a 12-36 month driving disqualification and a £1,000 fine.
The penalty for refusing to provide a specimen for evidential analysis at the police station is even greater. Read Failure To Provide A Test Sample for more information.
Should I consult a solicitor?
If you've been charged with a drink driving related offence, you need to consider your position very carefully as the penalties can be severe. In every case, you are strongly advised to seek legal advice. You can find a criminal law solicitor in your area via Contact Law .
- Drink Driving Law Overview
- Drink Driving FAQs
- Drink Driving Penalties
- Failure To Provide A Test Sample
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