While most drivers are familiar with what a Breathalyzer is and its role in drink driving arrests, many are not sure how it actually works or the legal weight it can carry when determining guilt or deciding on the appropriate level of punishment. The debate surrounding Breathalyzer tests often hinges on one critical question – can you legally refuse a Breathalyzer? In this article, we’ll unpack the science behind Breathalyzers, your rights when asked to take one, and the potential legal ramifications of refusal.
What is a Breathalyzer and How Does It Work?
The term ‘Breathalyzer’ is commonly used to describe any device used by law enforcement to measure a person’s blood alcohol content (BAC) from a breath sample as part of a sobriety test. Breathalyzers operate on the principle that when someone drinks, the ethanol eventually diffuses into the lungs and is exhaled in breath. They give a result straight away, allowing for indirect but accurate measurement of BAC levels.
If you are accused of drink driving, you will likely be subjected to a roadside breath test, followed by a breath test, urine sample test, or blood test at the police station if you are arrested. About 87% of motorists charged with drink driving provide a breath sample, and failing to provide a specimen can have serious consequences.
Breath tests are conducted using Type-Approved evidential breath machines found in a typical police station, such as the Lion Intoxilyser 6000UK, Intox EX/CR, and Camic Datamaster in England and Wales. These machines are tested rigorously for accuracy, ensuring laws can be applied justly to all test subjects.
The testing process involves a three-minute window for the subject to blow into the breathalyser machine, with the device monitoring alcohol content as they exhale. The recorded breath sample is based on deep lung air, meaning the test provides breath alcohol content (BAC) with similar precision to a blood test. Even small or incomplete samples are used to determine a subject’s breath alcohol content, though they generally result in lower-than-actual BAC values.
Breath readings can be falsely elevated by mouth alcohol, which can result from several factors, like oesophageal reflux, but its effects will quickly dissipate following a half-life law, which states that a quantity will drop by 50% for every unit of time. The alcohol starts to lose 50% of its amount for every minute that passes, and it will reach zero after roughly 10 minutes. Law enforcement will usually consider this and allow for any residual mouth alcohol to clear before conducting a screening test. Alcohol has elimination rates that vary based on factors such as height, weight, and gender. These factors can influence not only how alcohol is distributed in the body, but also how it affects breath test results.
Can You Legally Refuse a Breathalyzer?
Generally speaking, breath tests are not optional in the UK if a police officer has reasonable suspicion that you are over the drink-drive limit. By declining a breath test when the police ask or failing to provide a breath sample without a reasonable excuse, like a genuine medical condition or mental condition stopping your ability to provide a specimen, you risk arrest and could be convicted.
A genuine medical reason can include genuine physical injuries, like injuries to the mouth, face, or chest. Breathing conditions diagnosed by a doctor or medical practitioner, like asthma, are also considered valid medical reasons for failing to provide a specimen. In these cases, a blood or urine specimen is taken instead. In some cases, a medical condition like shock or certain phobias can impact how you provide a sample. for example, a phobia of needles can sometimes exempt you from providing a blood sample.
If a person refuses to submit to a breath test after being suspected of drink driving and none of these conditions or any other reasonable excuse applies, they can face serious consequences, even if no alcohol is detected.
Penalties for Refusing a Breathalyzer
Declining a breath test or failing to co-operate with a blood or urine test is a criminal offence called, “Failure to Provide.” Under the Road Traffic Act 1988, a police officer with reasonable suspicion that you have been drink driving has the right to request an evidential specimen, in the form of a breath test, blood test, or urine sample.
In the UK, being convicted of Failure to Provide an evidential specimen is a criminal offence and can result in similar consequences to a drink driving charge. If you are found guilty and fail to provide a reasonable excuse, these penalties can include:
- A minimum driving disqualification for 12 months
- An unlimited fine at the discretion of the court
- Unpaid community service
- Penalty points on your driving licence
- A criminal record, resulting in difficulties with renting or employment, where DBS checks are common
- In extreme cases, like a severe road traffic accident, up to six months imprisonment
If a driver refuses an evidential test, it is usually viewed by police and the court as an admission of guilt. A person driving or in charge of a vehicle who won’t provide a sample is usually arrested, charged with a criminal offence and treated as if they were drink driving, whether or not they have actually done so. The only time you can decline a Breathalyzer is if you have a reasonable excuse. It is always in your best interest to comply with the police and take the preliminary test to provide a specimen when asked to do so or risk a driving disqualification, fine or worse.
If you find yourself facing a Failure to Provide conviction, it’s important to seek legal advice from experienced solicitors like #1 Motoring Solicitors to ensure your rights are protected.
What are Your Rights Regarding Taking a Breathalyzer?
Failure to provide a specimen is a serious charge, but you still have rights under the law. These include:
- The right to legal representation: You have the right to consult with a solicitor. However, the police do not have to wait for you to speak to a solicitor before requesting a breath sample. If you fail to submit to a breathalyser because you want to wait to speak to your solicitor, you may still be charged.
- The right to understand consequences: The police officer must inform you of the legal consequences of failing to provide a specimen.
- The right to know police codes of practice: You are allowed to request to read the rules that the police must follow in your situation, also called the police “codes of practice.” If the police fail to let you read these, they are not liable for criminal proceedings, but it can be used to weaken the case against the driver.
- The right to see a written notice of your rights: You are permitted to see a written notice of your rights in your native language.
A solicitor can help you understand your rights and ensure they are upheld throughout the legal process.
How Can a Solicitor Help in the Case of Refusing a Breathalyzer?
While you should always comply with police and never refuse to provide a specimen, a solicitor can be a valuable ally if you find yourself facing a Failure to Provide conviction. Even if you weren’t driving the vehicle, you can face the same consequences as if you were, including a fine, driving ban, or even up to six months imprisonment.
A solicitor can examine the details of your case and determine whether any mitigating circumstances could be considered a reasonable excuse. They will also examine the police officer’s conduct during the traffic stop and arrest and attempt to determine whether they followed their code of conduct. In some cases, they may even be able to plea bargain for a less severe penalty.
An experienced solicitor can also help you understand the implications of failing to take a Breathalyzer and advise you on the best course of action to minimise the potential damage. They are a critical resource for anyone facing the consequences of refusing a Breathalyzer.
Conclusion
Failing to provide a specimen or take a Breathalyzer when the police pull you over for suspected impaired driving is a criminal offence that carries serious consequences. While you may have the right to decline in some circumstances, the penalties for refusal can be steep. Whether or not you were drinking, a Breathalyzer gives results straight away, avoiding ambiguity or assumptions of guilt from the police officer. Understanding the laws, your rights, and how to defend them can help you make informed decisions that protect your interests.
By arming yourself with knowledge and advice from an experienced solicitor like #1 Motoring Solicitors, you can help to ensure that your rights are protected, your decisions are informed, and the consequences you face for failing to provide a Breathalyzer are fair and just.