Key Points — Refusing a Breathalyser
- Criminal offence: Refusing to provide a breath specimen is a criminal offence under section 7 of the Road Traffic Act 1988.
- Same penalties as drink driving: A conviction carries a mandatory minimum 12-month driving ban, up to 6 months imprisonment, and an unlimited fine.
- Reasonable excuse defence: There is a limited reasonable excuse defence — but it is difficult to establish without specialist legal advice.
- Medical reasons: A genuine medical reason (such as a respiratory condition) may constitute a reasonable excuse, but you must raise it at the time.
- Act quickly: If you have refused a breathalyser, contact a specialist road traffic solicitor immediately.
What Is the Law on Refusing a Breathalyser?
The law on refusing a breathalyser is found in section 7 of the Road Traffic Act 1988. This section requires a person to provide a specimen of breath, blood, or urine when required to do so by a police constable. Failing to provide a specimen — without reasonable excuse — is a criminal offence.
The police can require a breath specimen in two situations: (1) at the roadside, using a handheld breathalyser device, following a lawful stop; and (2) at a police station, using an evidential breath testing device (the Intoxilyzer). The roadside test is a preliminary test — if you fail or refuse it, you will be taken to a police station for an evidential test.
It is the refusal to provide the evidential specimen at the police station that typically gives rise to a charge under section 7. Refusing the roadside test alone is a separate, lesser offence under section 6 RTA 1988.
What Are the Penalties for Refusing a Breathalyser?
The penalties for failing to provide a specimen under section 7 RTA 1988 are broadly equivalent to those for drink driving itself:
- Mandatory minimum 12-month driving ban (3 years for a second offence within 10 years)
- Up to 6 months imprisonment
- Unlimited fine
- Criminal record lasting 11 years on your driving licence
- New drivers: licence revoked and must retake test
- Employment consequences — particularly for professional drivers
The courts treat refusal seriously. In some cases, a refusal is treated more harshly than a positive breath test — because the court may infer that you refused precisely because you knew you were over the limit.
Is There a Reasonable Excuse for Refusing a Breathalyser?
Yes — but the reasonable excuse defence is narrow and difficult to establish. The law recognises that there may be genuine reasons why a person cannot provide a breath specimen. However, the courts apply a strict test: the excuse must be a physical or mental inability to provide the specimen, not simply an unwillingness to do so.
Examples of potentially valid reasonable excuses include: a genuine respiratory condition (such as severe asthma or COPD) that physically prevents you from providing a sufficient breath sample; a phobia of needles (if a blood specimen is requested); or a genuine medical emergency. Importantly, you must raise the excuse at the time — you cannot rely on a medical condition that you did not mention to the police.
Examples that are NOT reasonable excuses include: being too drunk to understand the request; refusing on principle; claiming you did not understand the procedure; or simply not wanting to provide a specimen. Legal advice alone — telling the police you want to speak to a solicitor first — is not a reasonable excuse for refusing to provide a specimen.
What Happens at the Police Station?
If you are taken to a police station following a roadside breath test (or a road traffic incident), the custody sergeant will require you to provide two specimens of breath using an evidential breath testing device. The lower of the two readings is used for prosecution purposes.
Before requiring the evidential specimen, the officer must give you a statutory warning — informing you that failure to provide a specimen may render you liable to prosecution. If this warning is not given, or is given incorrectly, the prosecution may fail. This is one of the procedural challenges we examine in every case.
If you are unable to provide a breath specimen for medical reasons, the officer may require a blood or urine specimen instead. Refusing to provide a blood or urine specimen (without reasonable excuse) is also an offence under section 7.
Can I Change My Mind After Refusing?
In limited circumstances, yes. If you initially refuse but then offer to provide a specimen before the procedure has concluded, the officer has a discretion (but not an obligation) to allow you to do so. However, once the procedure is complete and you have been charged, you cannot retrospectively provide a specimen.
What Should I Do If I Have Refused a Breathalyser?
If you have refused to provide a breath specimen, you should contact a specialist road traffic solicitor as soon as possible. The sooner you get advice, the more options you have. We will review the circumstances of your arrest, the procedure followed by the police, and advise you on whether a reasonable excuse defence or any other challenge is available.