What Happens If You Refuse a Roadside Breath or Drug Test?

The most common way for a motorist to be arrested in connection with a drink or drug driving related offence is by providing either a preliminary breath test over the prescribed limit or by providing a positive preliminary drug swab. 

However, it is also possible for a motorist to be arrested for failing to co-operate with a preliminary test.

Power of Police to Stop Vehicles 

Pursuant to section 163 of the Road Traffic Act 1988, a person driving a vehicle on a road must stop when required to do so by a constable in uniform. This means that the police can stop any vehicle, at any time, for any reason. 

This does not, however, mean that the police can stop vehicles randomly, under the guise of the motorists committing a moving traffic offence, solely to perform a roadside drug or alcohol test. The courts have considered such circumstances and have established that such an action could amount to malpractice. 

For the police to require a specimen of breath or saliva, certain circumstances must arise.

Failing to provide a roadside specimen – the Law 

Pursuant to section 6 of the Road Traffic Act 1988, a constable may require a person to co-operate with any one or more preliminary tests if: 

1. They reasonably suspect the person is driving, attempting to drive or is in charge of a motor vehicle on a road or public place and has alcohol or drug in their body or are under the influence.  
2. They reasonably suspect the person has been driving, attempting to drive or in charge of a motor vehicle on a road or public place whilst having alcohol or a drug in his body or while unfit to drive because of a drug and still has alcohol or a drug in his body or is still under the influence of a drug. 
3. They reasonably suspect the person is or has been driving, attempting to drive or in charge of a motor vehicle on a road or other public place and has committed a traffic offence whilst the vehicle was in motion. 
4. An accident occurs owing to the presence of a motor vehicle on a road or other public place and they reasonably believe that the person was driving, attempting to drive or in charge of the vehicle at the time of the accident. 

Pursuant to section 6(6) of the Road Traffic Act 1988 a person commits an offence if without reasonable excuse they fail to co-operate with a preliminary test. 

Arrest for failing to provide a roadside specimen 

Section 6D of the Road Traffic Act 1988 outlines that a constable may arrest a person without warrant if:

1. As a result of a preliminary breath or drug test they reasonably suspect the proportion of alcohol or drug in their body exceeds the prescribed or specified limit.  
2. The person fails co-operate with a preliminary test in pursuance of a requirement imposed under section 6 and the constable reasonably suspects that the person has alcohol or a drug in his body or is under the influence of a drug.

Therefore, if a motorist fails to provide a roadside breath or drug test, there is a significant likelihood that they will be arrested.

Consequences of failing to provide a roadside specimen 

By virtue of section 6(6) Road Traffic Act 1988, if a motorist refuses to provide a roadside sample of either breath or saliva and does not have a reasonable excuse not to provide, they would be guilty of an offence which carries the following penalties:

• 4 penalty points 
• A minimum of a Band B fine (100% of relevant weekly income) up to a maximum of £1000.00 (level 3 fine) 

The court does technically have the power to disqualify a defendant for any offence pursuant to section 163 of the Sentencing Act 2020, however, in practice this is something that rarely, if ever occurs.

Following arrest, it is likely that the motorist would be taken to either the police station or the hospital where a further requirement for breath, blood, or urine may be made. What follows from here will depend on whether a sample is provided or not.

Following Arrest

Following arrest, a motorist, depending on the circumstances, would likely be brought to either the hospital or the police station, where a further sample is likely to be required. If a motorist provides a sample, and it comes back over the limit, they will likely be charged with an offence of either drug driving or drink driving. If a sample comes back under the limit, it is likely that no further action will be taken in relation to either the drink or drug driving allegations, but the motorist will likely still be charged with failing to co-operate with a preliminary test.

If a motorist refuses to provide a specimen at a police station or hospital, then they will likely be charged with failing to provide a specimen for analysis, which carries similar, and sometimes more severe consequences than drink and drug driving. 

How can Olliers help if you have failed to co-operate with a preliminary test

Early legal advice can make a significant difference. Our expert motoring solicitors are here to help, offering confidential and professional legal support at every stage of your case.

Contact our specialist motoring team by emailing info@olliers.com or by telephoning 01618341515 (Manchester) or 02038836790 (London).