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The Law on failing to provide a Sample

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You may be asked to provide a breath sample at the roadside if you are suspected of driving with excess alcohol in your body. If you provide a positive sample, you are likely to be arrested and taken to the police station.

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

The sample taken at the roadside is just a preliminary test to see if you’re over the limit. Once at the police station you will be asked to provide an evidential sample of breath.

But I wasn’t over the limit or driving!

If the police have reasonable grounds to suspect that you were driving and you refuse without good reason to provide a sample, you may be guilty of the offence. It is crucial to note that the fact you were not driving does not mean that you can refuse to provide a sample of breath, nor does it matter if you weren’t over the limit.

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

If it is accepted, for whatever reason, that you cannot provide a breath sample, you will be asked to provide a sample of blood or urine. Failure to provide the requested sample without good reason is an offence.

What is a refusal?

A failure to provide a sample, even not trying hard enough, for example, constitutes a refusal. 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 or stress.

The taking of a sample cannot normally be delayed for you to be given legal advice although the police may allow that to happen.

Is there a defence?

It is a defence to show that you had a reasonable excuse not to provide the sample. A medical reason such as asthma or a genuine needle phobia could constitute a reasonable excuse.

What sentence will I receive?

A conviction will result in a mandatory disqualification of at least 12 months.

If you have a previous conviction in the last ten years for a drink or drug driving offence, the minimum disqualification will be three years.

As well as a disqualification you could be fined, given a community order or sentenced to up to 6 months in prison.

How can we help?

The law in relation to failing to provide a specimen of breath can be complicated, if you would like expert advice, here at Emery Johnson Astills we can attend police stations 24 hours a day. Furthermore, we attend both Magistrates and Crown Courts, with our own expert Solicitor Advocates being able to conduct Crown Court matters.

If you therefore find yourself suspected of an offence please give a member of the Crime Team a call on 01162554855 or 01509610312 or email us on for advice.

With offices in Leicester and Loughborough our solicitors and police station representatives are able to attend a number of local police stations, whether an interview is conducted voluntary or under arrest.

For more information on the members of the Crime Team at Emery Johnson Astills please visit our people page.