Legal Eagle: What happens if you refuse a breathalyser test?

Getting behind the wheel after that beer you had in the pub after work always comes with the unerving risk of being pulled over by police. 

A lot of drivers have found themselves, for whatever reason, being stopped and asked to provide a breath sample.

But have you ever wondered what can happen if you refuse a breathalyser test? And can you refuse to co-operate with the roadside procedure when required to do so?  

MM have teamed up with Olliers Solicitors, a leading criminal law firm based in Manchester, to answer YOUR legal questions. 

This week, Olliers shed some light on what penalties can be imposed if you fail to take a breathalyse test.


Our reader’s question this week:

I recently got in trouble for failing to provide a specimen of breath for analysis and assaulting a PC recently. 

The court indicated a high community penalty as I had a tousle with the arresting officer who was particularly aggressive with me and dragged me out of the car. 

What penalties could be imposed?


Failing to Provide a Specimen and Assaulting an officer are both offences that can carry custodial penalties.

The magistrates would usually seek what is called a pre-sentence report following your conviction. 

The court should obtain a PSR before forming the opinion that custody is the only suitable unless the court is of the opinion that it is unnecessary (e.g. multiple offences, already had community service, extremely high reading and aggravating features etc Or if a PSR was obtained on the last occasion). 

At court, the Magistrates would usually give an indication (as they have in your case) as to the level of penalty they are considering but that is not to say that custody has been ruled out.  

When more than one offence arises out of the same set of circumstances, the Magistrates can impose one sentence for the offence that carries the higher penalty.

As a result, even though you will be convicted of the two offences, you should only be penalised for one of them. In your case, the assault of an officer is the more serious offence with penalties starting with a low level community order.  

The failing to provide would be deemed an aggravating feature to the assault of an officer and the circumstances surrounding your failure would be what the Magistrates should consider when considering penalty.

Failing to provide a sample because you thought you had a medical reason is much less serious then deliberately refusing to give a specimen when you are clearly over the limit. Similarly, the nature of the assault and injury to the officer would be considered.  

In from the information you have provided we would estimate a disqualification from driving between 2 to 2.5 years in addition to a high level community penalty which may include unpaid work.

Do you have a question for the legal team at Olliers Solicitors? 

Their specialist criminal lawyers – including a specialist motor law department – are ready to answer your questions for FREE. All you have to do is email them in to our newsdesk here: newsdesk (at) mancunianmatters (dot) co (dot) uk

You can find more about Olliers Solicitors here.

Image courtesy of Scottish Government with thanks.

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