If you are suspected of driving with excess alcohol in your body, you may be asked to provide a breath sample at the roadside. If that sample is positive, you are likely to be arrested and take to the police station.
Why do I have to do it again at the police station?
Once at the police station you will be asked to provide an evidential sample of breath, the sample taken at the roadside is just a preliminary test to see if you are over the limit.
But I wasn’t over the limit or driving!
It is crucial to note that the fact you were not driving does not mean that you can refuse to provide a sample of breath, nor does it matter if you weren’t over the limit. If the police have reasonable grounds to suspect that you were driving and you refuse, without good reason to provide a sample, you may be guilty of the offence.
What if I can’t provide a breath sample or the machine is broken?
If it is accepted, for whatever reason, that you cannot provide a breath sample, you will be asked to provide a sample of blood or urine. Failure to provide the requested sample without good reason is an offence. Which sample is requested (blood or urine) is at the officer’s discretion and is not for you to choose.
What if I wasn’t warned?
You have to be warned that failure to provide the sample is an offence, if the warning is not given this may be a bar to conviction – seek early legal advice.
What is a refusal?
A failure to provide a sample, even not trying hard enough, for example, constitutes a refusal.
The taking of a sample cannot normally be delayed for you to be given legal advice although the police may allow that to happen.
Examples from cases where reasonable excuse has not been found include: a desire to see a doctor, the illegality of detention, mistake or genuine belief, religious belief, the sight of blood, stress.
Is there a defence?
It is a defence to show that you had a reasonable excuse not to provide the sample. A medical reason such as asthma or a genuine needle phobia could constitute a reasonable excuse.
What will I get?
A conviction will result in a mandatory disqualification of at least 12 months and is often in the region of 18 months or longer.
If you have a previous conviction in the last ten years for a drink or drug driving offence, the minimum disqualification will be three years.
As well as a disqualification you could be fined, given a community order or sentenced to up to 6 months in prison.
Is it different if I was not driving?
If you were suspected of being in charge of a vehicle before failing to provide a sample rather than driving, the penalty is different. You may be disqualified, but if the court chose not to, they would impose ten penalty points. The maximum prison sentence for this offence is three months.
How can we help?
The law in relation to failing to provide a specimen of breath can be complicated, if you would like expert advice, please contact any member of our vastly experienced Criminal Defence team.
Mr John Stokes (John.Stokes@danielwoodman.co.uk),
Mr Anthony Pearce (Anthony.Pearce@danielwoodman.co.uk),
Mr Jonathan Lewis (Jonathan.Lewis@danielwoodman.co.uk),
Ms Sarah Turland (Sarah.Turland@danielwoodman.co.uk),
Mr Daniel Woodman (Daniel.Woodman@danielwoodman.co.uk) or
Mr Lorne Wilkinson (Lorne.Wilkinson@danielwoodman.co.uk).