Failing to provide a specimen of breath: Sentencing guidelines

3rd November 2020 | Road Traffic Offences|
Nick Titchener headshot

Nick Titchener

Director & Solicitor Advocate

In Brief

The offence of failing to provide a specimen of breath is a serious offence and can have significant consequences in the event of a guilty verdict. It is important to know the sentencing guidelines around failing to provide a specimen of breath in order to understand the impact that a conviction can have.

Driving Breath Test

What does failing to provide a specimen of breath mean?

When the police stop a vehicle on the road, they may choose to carry out a breath test if they suspect that the driver has consumed illegal drugs or is driving over the legal alcohol limit. A breathalyser will give an indication of this. Failing to provide a specimen at the police station means refusing to take part in such a test, and ordinarily gives the police cause to suspect that a driver is over the legal alcohol limit or has consumed illegal drugs.

Can the police perform a breath test on anyone they want to?

While the police can stop any vehicle on the road, they must have reasonable grounds for conducting a roadside test such as a breath test. These reasonable grounds include:

  • A motorist driving erratically or committing a traffic offence such as driving through a red light
  • A motorist being involved in a road traffic collision
  • A motorist displaying signs of intoxication (such as slurred speech) when pulled over by the police

Can I opt to provide a specimen of breath at a later time?

No. If requested by the police, the specimen of breath is required immediately in order to determine whether a motorist is intoxicated. Providing a specimen at a later time would fail to achieve this accurately.

Can I refuse to provide a specimen of breath?

You do not have a right to refuse to provide a specimen of breath when requested by the police. Refusing to provide a specimen of breath without reasonable grounds constitutes a criminal offence.

What are the sentencing guidelines for failing to provide a specimen of breath?

There are several factors which will impact the sentence imposed for failing to provide a specimen of breath. These include whether the failure was a deliberate refusal, the level of driver impairment at the time of the failure and any previous offences and disqualifications.

The maximum possible sentence for failing to provide a specimen of breath is six months’ imprisonment and an unlimited fine. However, depending on circumstances, many sentences involve disqualification of driving for a set period ranging from 12 months to 60 months.

Are there any reasonable excuses for failing to provide a specimen of breath?

There are a number of reasons why a specimen of breath may not have been provided upon request. However, any of these would need to be backed up by substantial evidence:

  • Medical impairments such as an injury or asthma which would make providing a specimen of breath difficult
  • Mental health conditions such as extreme anxiety which may impair the ability to provide a specimen on the spot
  • Police not following the proper procedures when requesting a specimen of breath

It should be noted that the police must, when requesting a specimen of breath, warn you that failing to provide a specimen might lead to prosecution. If they fail to do so then the case may be challenged.

Does being accused of failing to provide a specimen of breath mean that you are also accused of drink driving?

No. While the police commonly request a specimen of breath when they suspect a motorist of drink driving, failure to provide a specimen of breath is a separate offence. In theory it is possible for a completely sober driver to be prosecuted for failure to provide a specimen of breath without alcohol ever having been involved.

What to do if you are accused of failing to provide a specimen of breath


It is important to seek expert legal help if you are accused of failing to provide a specimen of breath. The team of expert solicitors at Lawtons will work with you to achieve the best possible outcome in your case.

The highly experienced legal representatives at Lawtons are available 24 hours a day, 7 days a week. Get in touch with us today for expert legal advice and assistance by calling 0333 577 0522. 


Note: This guide is intended to give general information only and not intended to be used as the basis upon which advice is given nor should it be relied upon as giving advice specific to a case or individual.


Lawtons do not accept liability for anyone using this guide. Should you require specific advice in connection with a real case or situation, please contact us so we can provide specific legal advice and assistance.

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