As we approach the Christmas season, the Police will be preparing to carry out their annual drink driving campaigns. So what do you need to know if you are stopped and asked to provide a specimen of breath by a Police Officer?

In the vast majority of cases I have represented, the individual concerned did not realise (until it was too late) that failing to provide a specimen of breath for analysis was an offence in its own right, which may actually lead to the imposition of a tougher sentence than if they had provided a specimen.

Under the Road Traffic Act 1988, the Police have the power to request a driver or person in charge of a vehicle to provide a specimen of breath for analysis if they reasonably suspect alcohol has been consumed. Generally in the first instance, the police will carry out a road side breath test on a handheld device. This will not produce an evidential reading however, the result of this test will enable the officer to decide on their next course of action.

Currently the legal breath alcohol limit is 35 microgrammes of alcohol per 100ml of breath. The majority of Police Forces will not take action against someone who provides an alcohol breath reading lower than 40 microgrammes per 100ml of breath. If however, you provide a reading in excess of the legal limit, the officer then has grounds to arrest you and require you to provide two evidential samples of breath at the Police Station. It is the result of this test that would be used as evidence against you in Court if you provide a positive breath reading.

You will be given the choice of whether to provide a specimen of breath or not however, you need to be aware that should you fail to provide a specimen of breath without reasonable excuse, you run the risk of a minimum 12 month period of disqualification and an unlimited fine. Those are only the guidelines for an individual who had a misguided belief that they did not have to provide a specimen. Should you deliberately refuse or fail to provide a specimen, the Court will consider a community order with a 17-22 month disqualification and should there be evidence of serious impairment, the starting point for a first time offender is a 12 week custodial sentence. When compared to the sentencing guidelines for drink driving, the custodial sentence is applied for an offender providing a reading between 120-150 microgrammes of alcohol per 100ml of breath (which is extremely high).

There are defences available to the offence such as procedural errors made by the Police or by having a reasonable excuse not to provide a specimen of breath. A partial sample that does not provide a sufficient amount of breath for the machine to analyse is still considered to be a failure to provide the specimen.

So what constitutes a reasonable excuse?

There has to be a direct relationship between the excuse that is being relied upon and the inability to provide a specimen of breath. It has been confirmed that a physical inability to provide a specimen could amount to a reasonable excuse as could a mental inability e.g. mental capacity or understanding of the consequences of failing to provide a specimen of breath.

What is clear from previous case law is that a request to obtain legal advice prior to providing a sample or any other conditional agreement to provide a sample will not amount to a reasonable excuse. The Police do not have to allow you to talk to a Solicitor before giving a sample of breath.