What happens if you refuse a drugs test?

Drug testing by police in England and Wales operates at two stages: preliminary roadside screening and evidential testing at a police station. Refusal at either stage is itself a criminal offence, not merely a civil matter.

Preliminary roadside drug screening: s.6C RTA 1988

Under s.6 of the Road Traffic Act 1988 (as amended by the Railways and Transport Safety Act 2003), a constable may require a person driving or attempting to drive, or who the constable reasonably believes has been driving, to cooperate with a preliminary test if the officer has reasonable cause to suspect the person is driving under the influence of drugs, or has committed a traffic offence while the vehicle was in motion, or has been involved in an accident.

The preliminary test (s.6C) involves the use of a type-approved device, typically a saliva swab testing for cannabis (THC) and cocaine. The test does not test for all controlled drugs.

Failure to cooperate with a preliminary test without reasonable excuse is an offence under s.6(6) RTA 1988. The maximum penalty mirrors that for the substantive impairment or excess drugs offence.

Evidential specimens at the police station: s.7 RTA 1988

If a preliminary test is positive, or where impairment is suspected through other means (including roadside impairment assessment under s.6D), the officer may require an evidential specimen at a police station. Section 7 of the RTA 1988 requires a person to provide a specimen of breath, blood, or urine for laboratory analysis.

The police will typically require a blood sample for drug driving, as breath analysis does not detect most drugs. The sample is split: one half is sent for laboratory analysis by the police, and the person is entitled to retain the other half for independent testing.

Section 7(6) RTA 1988 provides that failing to provide a specimen without reasonable excuse is a criminal offence. The penalty is the same as for the offence of driving with a drug concentration above the specified limit (s.5A RTA 1988) or driving while unfit through drugs (s.4 RTA 1988).

Penalties for refusal

The maximum penalty on summary conviction for refusing a specimen is 6 months' imprisonment and/or an unlimited fine. A mandatory minimum 12-month driving disqualification applies, with 3 years for a second offence within 10 years. The court will also order extended re-testing before the licence is returned.

Courts treat wilful refusal seriously: in many cases the inference drawn is that the defendant refused because they knew they were over the limit. This can result in similar or even heavier sentences than if they had provided the specimen and been convicted of the substantive offence.

Reasonable excuse

A genuine medical reason preventing provision of a specimen (for example, a phobia of needles where blood is requested, or a respiratory condition preventing breath sample provision) may constitute a reasonable excuse. However, the bar is high and must be supported by medical evidence. A mere objection, or a claim that the test is unnecessary, will not suffice.

Field impairment test (SFST) Officers trained in drug recognition also carry out Standardised Field Sobriety Tests (SFSTs) and Drug Recognition Expert assessments. These are not themselves specimens under s.7, but failure to comply with a s.6D field impairment test is a separate offence under s.6(6).

Practical implications

Refusal to provide a specimen does not prevent prosecution for the underlying driving offence if other evidence (erratic driving, admission, drug paraphernalia) is available. It does, however, add an additional charge and typically results in a heavier sentence.