Failing to provide a specimen of breath

Failure to provide a specimen of breath can result in:

General nature of offence
Max prison/fine
Endorse licence
Penalty points

Failing to provide a specimen of breath for a breath test





Failing to provide a specimen for analysis or laboratory test

(a) When driving or attempting to drive: six months or £5,000 or both





(b) In any other case: three months or £2,500 or both




Failing to provide a specimen of breath - Defences

A popular defence to the charge failing to provide a specimen of breath is based on the defence of "reasonable excuse". This defence is  based on medical evidence and should be provided before the hearing. If necessary, expert medical evidence is obtained which addresses the specific issues raised by the defence. In (DPP v Crofton (1994) RTR 265) it was held that the Court should consider the following matters in such circumstances:

  • medical evidence of physical or mental inability to provide the specimen;
  • the causative link between the physical or mental condition and the failure to provide the specimen.

Once such a defence is raised, the onus is upon the prosecution to negate it.

Police failed to follow procedures for blood or urine samples at police stations

When your reading is between 40 and 50 a driver may choose to replace a breath specimen by supplying a blood or urine sample (section 8(2) of the Road Traffic Act 1988). The police:

  • must inform the driver that the specimen of breath which he has given containing the lower proportion of alcohol exceeds the statutory limit; but does not exceed 50 micrograms of alcohol in 100 millilitres of breath;
  • should inform the driver that in the circumstances he is entitled to claim to have this specimen replaced by a specimen of blood or urine if he wishes; but that, if he does so, it will be for the constable to decide whether the replacement specimen is to be of blood or urine and that if the officer requires a sample of blood, it will be taken by a doctor unless the doctor considers that there are medical reasons for taking blood, when urine may be given instead;
  • should ask the driver if there are any medical reasons why a sample of blood cannot or should not be taken from him by a doctor.

If the officer has failed to inform the driver of his option to have a blood or urine test you will be acquitted of the relevant allegation.

Challenging the evidential breath testing instrument (EBTIs)

The first generation of Evidential Breath Testing Instruments (EBTIs)were replaced in 1999. All forces are now equipped with the Intoximeter EC/IR, the Camic Datamaster or the Lion Intoxylizer 6000UK. They detect and record a wider range of information when analysing breath samples.

These three makes of instrument are type approved by the Secretary of State for the purposes of the Road Traffic Act. Any challenge of that type approval must be made by way of an application for Judicial Review, not in the course of a summary trial relating to the performance of a particular instrument: (see DPP -v- Brown and DPP -v- Teixeira [2001] EWHC Admin 932, 166 JP 1)

In the case of a breath specimen there is a statutory assumption at section 15 RTA that the instrument concerned performed reliably. However, that assumption may be challenged by evidence relevant to the circumstances of that particular case. In order to convict in the face of such evidence the Court must remain satisfied that the instrument provided a reading upon which they can rely. See Cracknell -v- Willis (1998) 1AC 450 at 467, and DPP -v- Brown; DPP -v- Teixeira.

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