Posted on 8th April 2015
There are a number of options open to the motorist but not all of them are the correct way to conduct the proceedings.
1. The motorist can refuse to take the road-side breath test which will automatically lead to an arrest for refusing to take the test. It is NOT a reasonable excuse to say I have only had one drink or I was not the driver of the car. The motorist will be taken to the Police Station and there will be another request for a breath test by blowing into the "Intoximeter ". If the motorist still refuses at this stage without a "Reasonable Excuse", (e.g. a medical condition preventing the motorist from being able to blow properly), the motorist will be charged with the offence of failing to provide a specimen of breath.
2. The motorist takes the road-side breath test and it is negative then he/she is free to leave the scene with the car.
3. The motorist can take the road-side breath test and if the result is positive then he/she will be arrested and taken to the Police Station. At the Police Station the arrested person will be asked to blow into the "Intoximeter" and if there is a refusal without a "Reasonable Excuse" then he/she will be charged with the offence of failing to provide a specimen of breath. If the arrested person does blow into the "Intoximeter" and the reading is over 35 ugs in 100 millilitres of breath then they will be charged with the offence of driving whilst under the influence of excess alcohol. If the reading is between 35 ugs and 50 ugs then the arrested person should be given the opportunity to give a blood sample which will be sent for analysis and they should be given a specimen to obtain his/her own analysis.
4. A motorist who refuses to give a sample of breath does not commit an offence if he/she can show that there is a "Reasonable Excuse" for doing so. This is most usually where a genuine existing medical condition prevents the motorist from being able to provide a sufficient amount of breath for the purposes of the test. In order to succeed in this defence very thorough medical reports and supporting documents will have to be obtained and shared with the prosecution so that they have a chance to obtain their own reports to agree, disagree or refute the defence of "Reasonable Excuse"
The main advice to anyone stopped by a Police Officer and asked to provide a specimen of breath is to always take the road-side breath test, if medically capable, as to not do so will nearly always lead to a conviction for refusing whereas there are a number of arguments to be put before the Court as to why the reading was over the prescribed limit.
Therefore the answer is to always Blow.
Michael Jones, Guildford Chambers Barrister