There are two types of offences under the Road Traffic Act 1988.The first is one of failing without reasonable excuse to provide a specimen of breath for a breath test when required to do so by a police officer in uniform under section 6(4) of the Act. This is the roadside breath test. The second is one of failing to provide a specimen of blood, urine or breath for analysis under sections 7(6) and 7A of the Act. This is when the police request a sample at the police station. The summons for this offence should make clear whether the defendant was actually driving or attempting to drive or in charge of the motor vehicle. This will make a difference to sentence if convicted. Both offences can only be dealt with in the Magistrates Court unless linked with a more serious matter destined for Crown Court. Then the Crown Court can only deal with them if there is a guilty plea and are bound by the sentencing powers of the Magistrates Court. If there is a not guilty plea the offences would be sent back to the Magistrates Court for trial.
The Roadside Breath Test
This can only be requested by a police officer in uniform. Only a Home Office approved breathalyser can be used. The officer must have a reasonable suspicion that the person is or had been driving or attempting to drive a motor vehicle on a public road or public place having consumed alcohol or that the person had committed a traffic offence Driving also includes being in charge of a vehicle. An officer can also request a breath test where there has been an accident. If the driver is in hospital as a result of the accident he can still be required to take a breath test provided that the doctor treating him has no objection
The defendant can argue that he had a reasonable excuse for not providing a roadside breath test. He does not have to prove it beyond reasonable doubt only that it is probably true. An example might be that he was in a hurry to seek medical treatment.
The maximum penalty is a level 3 fine (up to £1000), 4 penalty points on the licence unless special reasons are successfully argued and discretionary disqualification. Special reasons could be an emergency even if this was not sufficient to provide a defence.
Failing to provide samples at the Police Station
This is the more serious offence of the two. Usually the person will have been arrested after taking a roadside breath test which proved positive. The police can request a sample when investigating a drink or /drugs driving offence. The officer can request two specimens of breath or blood or urine for alcohol analysis.
For more information on:
- Examples of Fail to provide