LEGAL EAGLE: Refusing to take a breath test

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I was driving home last weekend after a night out with friends and got stopped by the police. They said I was speeding and asked me to take a breath test. I hadn’t been speeding and didn’t want to do it. I was then arrested and taken to the police station where I was told to give another breath test. I refused to do it, I was angry at having been arrested and I hadn’t been speeding. I have been charged and have to go to court. I have been told I will lose my licence. I had only had one bottle of beer earlier in the evening, I don’t see why I should have to do a breath test.

It sounds like you have been charged with an offence of failing to provide a specimen of breath for analysis. This offence can be committed even when you have not been drinking at all or it turns out you were not driving. In very general terms:

The police have the power to request a breath sample for analysis if they are investigating a relevant offence

If the request has been made lawfully (and there are a number of requirements with which the police must comply) and a person refuses to provide a sample without a reasonable excuse for doing so then they are committing an offence

There is no statutory definition of what amounts to a reasonable excuse

If a person is found guilty of this offence and they were the driver of a vehicle the court must disqualify them from driving for at least 12 months in addition to whatever sentence is imposed for the offence.

If a person is prosecuted on the basis that they had not been driving but were still properly required to provide a sample then the court must endorse at least 10 penalty points on their licence and may still disqualify them from driving.

Whilst I realise this is not what you were doing, the point of these provisions is to make sure that people who are suspected of drink driving cannot avoid being prosecuted simply by refusing to provide a sample. Much will depend on why and how the police required you to provide a specimen but, if everything was done properly, I am afraid it does look as if you have some difficulties with this case. This area of law is quite complicated so you may want to consult a solicitor about the specifics of your case.

l Ben Hoare Bell LLP has specialist Criminal Defence Solicitors in Sunderland and surrounding areas. To speak to a Solicitor please ring 0191 565 3112 or email advice@benhoarebell.co.uk. Visit www.benhoarebell.co.uk.