Failing to provide a breath specimen – the law and defences
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. Failing to provide a breath specimen may mean you commit a separate offence.
Why do I have to provide another specimen 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, so failing to provide a breath specimen without good reason, 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 failing to provide a breath specimen or other sample is is an offence. If the warning is not given this may be a bar to conviction. As a result it is important that you seek early legal advice.
What is a refusal?
A straightforward refusal , or not trying hard enough constitutes a refusal and the offence of failing to provide a specimen of breath.
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 the following:
- a desire to see a doctor
- the illegality of detention
- mistake
- religious belief
- the sight of blood
- stress.
Is there a defence to failing to provide a breath specimen?
It is a defence to show that you had a reasonable excuse for failing to provide a breath specimen. A medical reason such as asthma or a genuine needle phobia could constitute a reasonable excuse.
What is the sentence on conviction?
A conviction will result in a mandatory driving 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 driving ban you could be fined, given a community order or sentenced to up to 6 months in prison.
Will it different if you were 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 still 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.
Instruct an expert motoring law solicitor
As you can see, a conviction for failing to provide a breath specimen can have serious consequences and the law relating to defences can be complex.
As a result, if you are arrested or know that the police wish to speak to you about an offence then make sure you insist on your right to free and independent legal advice.
The advantages of such early advice legal advice can be found here.
If you have already been interviewed or face court proceedings we can still make a real difference to the outcome of your case. Legal aid may well be available to fund your defence at court.
An example of how we have defended a case recently can be found here.
We made representations to have a prosecution discontinued in this case.
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