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Failing to provide a breath specimen the consequences

View profile for Olivia Peck
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The police can request a specimen of breath when they have reasonable grounds to suspect that you were driving, attempted to drive or drunk in charge of a vehicle where alcohol or drugs have been consumed.

It is a criminal offence to refuse to provide a breath specimen and you, therefore, be arrested and charged if you fail to provide.

Can I defend the charge?

There is a defence available called ‘reasonable excuse’ for not being able to provide a breath sample, here at Johnson Astills we offer specialist legal advice to be able to defend such charges and avoid a conviction. The defence of reasonable excuse often tends to be described as a physical or mental ability, for example a medical condition such as lung and chest problems. If a defence of reasonable excused is raised, the burden of proof is then with the Prosecution to negate it.

A defence can also be raised as to the improper procedure used when request a breath test and the incorrect operation of the breathalyser machine.

Can I lose my licence for failing to provide?

Yes, the Court  will impose a mandatory disqualification of 12 months, however it is possible to ask the court to allow you to take part In the drink driver rehabilitation course which will reduce the disqualification by up to one quarter

The Court must also disqualified for at least 2 years if you have had 2 or more disqualifications for periods of 56 days or more in the preceding 3 years. Further, they must disqualify for at least 3 years if you have been convicted of a relevant in the preceding 10 years.

Can I go to prison for failing to provide?

Yes, the Court can impose a prison sentence of up to 6 months for the offence. This is more likely if it is a repeated offence of failing to provide or if you are also charged with other related offence particularly offences related to bad driving. 

If you are thinking of raising a defence to the charge it is vital that you obtain expert advice regarding this, and what your success rates may be.

Johnson Astills are experts in Road Traffic offences, and are able to assist 24 hours of the day whether at the police station or at Court. If you need advice or representation from Johnson Astills , please contact us at or telephone us on 0116 255 4855.

To discuss any offences please contact our Criminal Defence Team at Johnson Astills at our Leicester or Loughborough offices.