Failure to provide a specimen/breath test

There are two types of offence in relation to failure to provide a specimen. These are:

• failing to provide a road side specimen of breath, and
• failing to provide an evidential specimen for analysis. This again will usually be a breath sample and is normally provided at the police station. If a blood sample is required there will need to be a doctor present.

Sections 4 & 5 of the Road Traffic Act 1988 provides that if without reasonable excuse you fail to provide a specimen of breath when required to do so you will be guilty of an offence and a constable may arrest you without warrant if he or she has reasonable cause to suspect that you have alcohol in your body. In most cases you will be tested (hence the description “roadside breath test”) although it is not uncommon for the test to be carried out at or near the place where you were stopped.

You should note, however, that unless you have been involved in an accident, then section 1 of the Road Traffic Act requires that the constable have “reasonable cause to suspect” that:

• you are “driving or attempting to drive or in charge of a motor vehicle on a road or other public place” and that you have alcohol in your body, or you have committed a traffic offence whilst the vehicle was in motion, or
• you have been driving or attempting to drive or been in charge of a motor vehicle on a road or other public place with alcohol in your body and you still have alcohol in his body, or
• you have been driving or attempting to drive or been in charge of a motor vehicle on a road or other public place and have committed a traffic offence whilst the vehicle was in motion,

Irrespective of any other penalty which you may or may not incur, the penalty for refusing a road side test is 4 penalty points or a discretionary disqualification and a fine of up to £1000. If you fail to provide a sample at the police station, this also carries a fine and disqualification for a period of 24 months and the possibility of either a community order or imoprisonment for a period of up to 6 months. This minimum period for disqualification will rise to 3 years if you have been convicted of an alcohol related offence within the last 10 years.

However, you may be able to avoid a conviction if you are able to show that you had a “reasonable excuse” for failing to provide a specimen or breath test. This could be for medical reasons such as asthma or breathing difficulties which prevent you from blowing into the machine or it may be a phobia abouit needles which prevent you from supplying a sample of your blood for testing. The fact that you had not been drinking will not be regarded as a reasonable excuse.

You should also be aware that you can be guilty of the offence even if you were not driving. The only test the prosecution will need to pass in court is that the officer had reasonable grounds for suspecting that the person had driven – although the fact that a person was not driving could amount to a special reason not to disqualify.

If you have been charged with failing to produce a breath test, or if you would like to discuss this with one of our solicitors, then please contact keepmedriving either by completing the appropriate online information form which you will find in the Getting Help section, requesting a free, no obligation call-back using the call-back form to the right or phoning us during office hours on 084 4804 4804

You should also note the provisions in relation to failure to provide a sample of blood or urine.