Failing to provide specimens for analysis (breath tests)

It is a criminal offence to fail to provide a police officer with specimens for analysis, without reasonable excuse. Under the Road Traffic Act 1988, there are two separate offences:

  • failing to provide a specimen of breath for a breath test when required to do so at the roadside;
  • failing to provide a specimen of blood, urine or breath at the police station.

Both offences are dealt with in the Magistrates’ Court (unless the individual is also charged with a more serious matter destined for Crown Court). In those circumstances, the Crown Court can only deal with it if there is a guilty plea, in which case the sentencing powers of the Magistrates Court will apply. If there is a not guilty plea, the charge would be sent back to the Magistrates Court for trial.

What’s the procedure for the roadside breath test?

This can only be requested by a police officer in uniform, and 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’ 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 they can still be required to take a breath test provided that the treating doctor has no objection.

Can I refuse?

An individual can argue, by way of defence, that they had a reasonable excuse for not providing a roadside breath test, for instance, they were in a hurry to seek medical treatment. However, medical evidence should be produced in support. If this defence is raised, it is for the prosecution to disprove this.

What’s the possible sentence on conviction?

The maximum penalty on conviction is a level 3 fine (up to £1000), and 4 penalty points on the driving 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.

What’s the procedure for providing samples at the police station?

Usually, the individual will have been arrested after a positive roadside breath test. 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 – it is entirely up to the police which sample is taken. Breath is the normal choice, with blood or urine only taken if the breathalyser has broken or is unavailable, or there are medical reasons for not taking a breath sample.

If the police request a sample of blood they must ask whether there are any reasons why a sample should not be taken. Case law suggests that the police must act reasonably and not ignore, for example, someone who declines to provide blood due to religious reasons. If the person has a phobia or medical reason for not providing a breath sample, they should inform the officer so an alternative sample can be taken.

The officer must warn the person that a failure to provide a sample may make them liable to prosecution. If the person is not able to understand the warning due to language difficulties then the police should ensure the warning is interpreted.

If a person is unconscious then a police surgeon may take a sample of blood. Once the person is awake they must be told that a sample has been taken and be asked for their permission to submit the sample to a lab test. A refusal amounts to a failure to provide.

The police do not have to delay the procedure to enable the person to consult a solicitor.

Can I refuse?

An individual can raise the ‘reasonable excuse’ defence for not providing a sample at the police station. However, the Court of Appeal has stated that an excuse is only reasonable if a person is physically or mentally unable to provide a sample, or there would be a substantial risk to health if the sample was taken. Reasonable excuse does not cover the scenario where a person had not consumed any alcohol at all or had drunk it after driving.

What’s the likely sentence?

The maximum penalty on conviction depends on whether the defendant was driving, or in charge of the motor vehicle which led to the request for the sample. If driving or attempting to drive, the maximum sentence is a level 5 fine (up to £5000), and/or 6 months’ imprisonment, disqualification for at least one year (unless there are special reasons), and licence endorsed (unless special reasons). There may also be an order to re-take a driving test. If the offence is committed within 10 years of a similar conviction, or drink-driving related conviction, the disqualification must be for at least 3 years.

If in charge of a motor vehicle, the maximum sentence is a level 4 fine (up to £2,500) and/or 3 months’ imprisonment, discretionary disqualification for any period and/or until a driving test is passed and licence endorsed (unless there are special reasons).

Driving bans may be reduced by 25% for attending a drink driving rehabilitation course.