Refusing a Breath Test: Law and Consequences

Under section 6 of the Road Traffic Act 1988, a constable in uniform may require a person to provide a preliminary breath test where the constable reasonably suspects that the person is driving, is attempting to drive, or is in charge of a motor vehicle while having alcohol in their body, or has committed a moving traffic offence. The test is administered at the roadside using an approved screening device.

If the preliminary test is positive or the person refuses to provide a specimen, the person will be arrested and taken to a police station where they will be required to provide an evidential specimen under section 7 of the Road Traffic Act 1988. The evidential specimen is normally two specimens of breath provided on an approved evidential breath testing device (such as the Intoximeter or Evidenzer). The lower of the two readings is used. If the machine is unavailable or there is a medical reason why the person cannot provide a breath specimen, specimens of blood or urine may be required instead.

Refusing to provide a preliminary breath test without reasonable excuse is a summary offence carrying a maximum fine of level 3 (£1,000), 4 penalty points, and discretionary disqualification. Refusing or failing to provide an evidential specimen without reasonable excuse is a more serious offence under section 7(6) of the Road Traffic Act 1988: it is treated as equivalent to being over the limit and carries a maximum of 6 months' custody, an unlimited fine, and a mandatory minimum 12-month driving disqualification.

A "reasonable excuse" for refusing is narrowly construed. Medical conditions that genuinely prevent a person from providing a specimen (such as severe asthma or a panic disorder) may constitute a reasonable excuse, but the burden is on the defendant to establish this. Simply being nervous or unwilling is not a reasonable excuse. The officer must give a clear warning that failure to provide a specimen may make the person liable to prosecution. The whole process, including the warning and any refusal, should be recorded on body-worn video.