Is it a crime to not provide a breath sample when asked?

Fail to provide a breath specimen

It is common practice for people to be asked to provide a breath sample when they are suspected of drink driving. Should that sample be positive, it is likely that you would be arrested.

Why do I have to do it again at the police station?

The roadside test actually just a preliminary test. Should yo be over the limit for that test then you will be asked to give another test at the station. The test at the station is the test used to provide evidence of drink driving.

But I wasn’t over the limit or driving!

If the police suspect that you are over the limit then you are obliged to give a sample, it doesn’t matter if you know that you are under the limit. The same rule applies if the police have reason to believe that you were driving even if you weren’t.

What if I can’t provide a breath sample or the machine is broken?

A blood or urine sample would be the alternative to a breath sample if it is agreed that for some reason you cannot provide a breath sample. It would, however, be an offence to then fail to provide a blood or urine sample. Which sample is requested (blood or urine) is for the officer to decide and not your choice.

What if I wasn’t warned?

You must 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.

Usually the taking of a sample cannot be delayed to seek legal advice however in certain situations the officer could choose to allow it.

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?

A medical reason such as asthma or a serious phobia of needles may form a reasonable defence for not providing a sample.

What will I get?

A conviction will result in a mandatory disqualification of 12 months or more.

However, if you have a previous drink or drug driving offence in the last 10 years then the minimum driving ban is 3 years.

On top of a disqualification you may receive a fine, be given a community order or receive a prison sentence of up to 6 months.

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 could vary slightly. 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?

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