Introduction
You are driving home. Police stop you and ask for a breath test. You have had a lot of drinks, not much, but enough to worry. You think: “If I refuse, they can’t prove I was over the limit.” That is a dangerous mistake. In the UK, refusing to provide a breath sample is a separate criminal offence, often with harsher penalties than drinking‑driving itself.
This article explains the law on breathalyser tests, the consequences of refusal, and how a criminal defence lawyer London or Essex firm can help if you are charged.
1. When Can Police Require a Breath Test?
Under the Road Traffic Act 1988, police can require a breath test if:
- They have reasonable suspicion you have been driving with alcohol or drugs in your body.
- You have committed a moving traffic offence (e.g., speeding, running a red light).
- You have been involved in a road traffic collision.
You do not have to be driving at the moment they can require a test up to two hours after driving.
2. The Penalties for Refusing a Breathalyser Test
Refusing to provide a breath sample (without reasonable excuse) is an offence under section 6(6) of the Road Traffic Act 1988. The penalties:
- Driving disqualification – Minimum 12 months (up to 3 years for a second refusal within 10 years).
- Fine – Up to £5,000 (magistrates’ court).
- Prison – Up to 6 months (rare for first offence).
- Criminal record – The offence is recordable and shows on standard and enhanced DBS checks.
Importantly, the penalty for refusing is often worse than the penalty for failing a breath test (driving with alcohol over the limit). For a first‑time low‑range drink‑drive (just over 35mg per 100ml of breath), the ban may be 12‑16 months and a fine. Refusing gives a mandatory 12‑month ban plus a fine and possibly prison.
3. What Counts as a Refusal?
Refusal includes:
- Explicitly saying “no”.
- Pretending to blow but not providing enough breath (deliberately).
- Walking away from the police car.
- Being physically capable but refusing to co‑operate.
- Delaying for so long that the test cannot be done (e.g., saying you need water, then waiting 30 minutes).
A criminal defence solicitor essex or London firm will argue if you had a genuine medical inability to provide a sample (e.g., severe asthma, a recent chest operation). But “I was too nervous” is not a reasonable excuse.
4. What About Failing the Test Instead of Refusing?
If you take the test and fail (over 35mg of alcohol per 100ml of breath), you will be charged with drink‑driving. The penalties are similar: 12‑16 month ban, fine, up to 6 months prison. But you have the right to request a blood or urine test as a backup (if you have a medical reason). Also, failing the test gives you a definitive reading, which can sometimes be challenged (e.g., if the machine was not calibrated).
In contrast, refusal gives the prosecution a very simple case: “The defendant was asked to provide a sample and did not.” There is no scientific evidence to challenge.
5. Defences to Refusing a Breath Test
Defences exist, but they are narrow:
- No lawful requirement – Police did not have reasonable suspicion, you were not driving, and no accident or traffic offence occurred. This is a technical defence.
- Medical incapacity – You genuinely could not provide a sample due to a medical condition, and you offered an alternative (blood or urine) which police refused.
- Duress – You were forced to refuse (e.g., someone threatened you).
- Procedural error – Police did not properly warn you of the consequences of refusal.
A best criminal defence solicitor in London will examine the police body‑worn footage, the custody record, and the roadside procedure. Many refusals are overturned because the officer failed to give a proper warning.
6. The Procedure After Refusal
If you refuse at the roadside, you will be arrested and taken to a police station. At the station, you will be asked again to provide a breath sample on an evidential machine (the Intoxilyzer). Refusing again leads to the charge.
You will be interviewed. Your solicitor will advise you whether to answer questions. Often, the advice is to remain silent or give a prepared statement explaining any medical issue.
You may be released on bail or under investigation. If charged, you will receive a court date.
7. The Impact on Your Life
A conviction for refusing a breath test means:
- Driving ban – You cannot drive for at least 12 months. If you need a car for work, you could lose your job.
- Criminal record – For many professions (driving instructor, HGV driver, police, healthcare), a drink‑drive or refusal conviction is a career‑ending.
- Insurance – Premiums skyrocket for years.
- Travel – Some countries (e.g., USA, Canada) may refuse entry with a drink‑drive conviction.
Given these consequences, it is essential to fight the charge if there is any defence.
8. Why You Need a Solicitor for a Refusal Charge
Many people think refusal is a “black and white” offence either you gave a sample or you didn’t. But experienced criminal defence lawyers London know how to challenge:
- The legality of the initial stop.
- Whether the police gave a proper warning.
- Whether you were physically incapable.
- Whether the police should have offered a blood or urine test as an alternative.
At Advice Wise Solicitors, we have successfully argued that our clients did not “refuse” they tried but had a genuine medical or psychological barrier. We also negotiate with the CPS to reduce the charge to a lesser driving offence where possible.
When you search defense lawyers near me for drink‑drive or refusal cases, look for a firm with specific road traffic law expertise. That is us.
Conclusion
Refusing a breathalyser test is almost always a bad idea. The penalties are severe, and the defences are limited. But if you have already refused, do not panic – you still have legal options.
Contact Advice Wise Solicitors immediately. Our criminal defence solicitor essex and London teams are available 24/7 for road traffic offences.
