If you are pulled over by the police and asked to provide a specimen of breath, it is important to understand your rights and whether you can refuse. During Christmas and other festive periods, the police often set up roadside checkpoints and stop large numbers of vehicles, even where the driver has done nothing wrong.
The police have a general power under section 163 of the Road Traffic Act 1988 to stop any vehicle. However, to lawfully require a breath specimen, an officer must have reasonable grounds to suspect that a driver has alcohol in their body or has committed a moving traffic offence. A test may also be required following a road traffic accident.
In practice, this is a relatively low threshold and may depend upon the officer’s observations and subjective judgement. An officer may rely on the smell of alcohol or their assessment that the driver’s speech is slurred. Erratic driving may also provide grounds for a test.
Once a lawful requirement has been made, refusing to provide a specimen without reasonable excuse is a criminal offence.
What Happens If You Refuse a Roadside Breath Test?
You are likely to be arrested and taken to a police station, where you may be required to provide evidential specimens.
Refusing to provide those specimens without reasonable excuse is a separate criminal offence. This means that refusing a test is not a way of avoiding prosecution if you are worried that you may be over the drink-drive limit.
The police can also carry out separate tests if they suspect you have been driving under the influence of drugs. Drug-driving tests follow a different process from breath tests for alcohol.
What If You Try but Cannot Provide a Breath Sample?
Being unable to provide a specimen is different from simply refusing. Some people genuinely try to provide a sample several times but cannot produce enough breath for the machine. A medical condition, physical injury or, in some circumstances, a psychological condition may explain why.
Having a medical condition does not automatically provide a defence. The question will usually be whether the condition actually prevented you from providing the specimen when required.
If you are capable of providing a specimen but simply decide that you do not want to, this is unlikely to amount to a reasonable excuse.
In practice, one of the first things we look at is whether someone refused to cooperate or genuinely tried to provide the required specimen. If a person simply decides that they do not want to take the test, that is very different from someone making repeated attempts but being physically unable to provide enough breath. Body-worn footage, police records and medical evidence can help establish what actually happened.
What Happens at the Police Station?
If a roadside breath test indicates that you may be over the limit, you can be taken to a police station for an evidential test. You will usually be asked to provide two breath specimens, with the lower reading generally used as evidence.
You cannot simply choose not to provide these specimens. If you refuse without reasonable excuse, you could be prosecuted for failure to provide. In some circumstances, the police may instead require a blood or urine specimen, including where there is a medical reason why breath cannot be provided.
The correct statutory procedure must also be followed. If you are prosecuted, a solicitor can examine whether the requirement was lawful and whether the police followed the correct process.
What Counts as a Reasonable Excuse?
A reasonable excuse is not simply a reason why you did not want to take the test.
For example, being worried that you will fail, believing that refusing will make it harder for the police to prove drink driving, or simply disagreeing with the police will not normally provide a reasonable excuse.
A respiratory problem, physical injury or another medical condition could potentially amount to a reasonable excuse if it genuinely prevented you from providing the required specimen.
These cases depend heavily on the evidence. We may consider how many attempts you made, what you told the police at the time, what the officers recorded and whether medical evidence supports your explanation.
What If You Believe the Request Was Unlawful?
Some drivers believe that an officer invented or exaggerated the grounds for requiring a breath test. For example, an officer may describe their speech or behaviour as unusual when they were simply stressed by being stopped.
A defence solicitor may be able to argue that the officer did not have reasonable grounds to require the specimen. If the requirement was unlawful, an essential element of the offence may not be established.
These arguments can be difficult to prove because the driver’s account will usually be weighed against the officer’s evidence, which magistrates may be more inclined to accept. Body-worn footage, dashcam recordings, passenger evidence and other contemporaneous material can therefore be important.
Even if the driver is convicted, it may still be possible to advance a special reasons argument to avoid the otherwise mandatory disqualification. Evidence that the driver had not consumed alcohol or was not over the limit may form part of that argument, but it will not, by itself, establish a special reason.
What Are the Penalties for Failing to Provide an Evidential Specimen?
Failure to provide an evidential specimen when driving or attempting to drive carries a mandatory driving disqualification of at least 12 months. The court can also impose an unlimited fine, a community order or up to 26 weeks’ imprisonment.
In some circumstances, the sentence can be more serious than it would have been for drink driving. Where there has been a deliberate refusal and evidence of a high level of impairment, the sentencing guideline provides a starting point of 12 weeks’ custody and a driving disqualification of between 29 and 36 months.
A driving ban can also affect employment and lead to higher insurance premiums.
Can You Defend a Failure to Provide Charge?
A failure to provide charge can be defended in certain circumstances. Our motoring solicitors can consider why the specimen was not provided, whether there was a genuine reasonable excuse and whether the police followed the correct procedure.
We can also review police body-worn footage, documentation and relevant medical evidence. In many cases, the important question is not simply whether you failed to provide a specimen, but why you were unable to provide it.
About the Author
Nathan Seymour-Hyde is a Partner and Head of Motoring at Reeds Solicitors. He is an experienced criminal defence solicitor who represents clients accused of drink driving, failing to provide a specimen and other road traffic offences, from the initial police investigation through to court proceedings.
For confidential advice, call 0333 240 7373 or email [email protected].
