If you have been arrested for Drink Driving you will have been asked to give a breath test at the police station
The law governing police station breath tests is complicated and set out in detail here. If you have been arrested for Drink Driving it is important to get advice from a specialist Drink Drive Solicitor.
Call us on 01623 397200 for free initial advice.
Provision of specimens for analysis. When can the police ask you for a breath test?
Section 7 Road Traffic Act 1988
(1) In the course of an investigation into whether a person has committed an offence under section 3A, 4 or 5 of this Act a constable may, subject to the following provisions of this section and section 9 of this Act, require him –
(There is no mention here of having to give the motorist a preliminary test, merely that the officer is investigating an offence. So in other words where the officer is investigating a ‘drink driving’ offence he can ask a motorist to provide a breath test or blood or urine.)
(a) to provide two specimens of breath for analysis by means of a device of a type approved by the Secretary of State, or
(b) to provide a specimen of blood or urine for a laboratory test.
Where can you give a breath sample?
(2) A requirement under this section to provide specimens of breath can only be made—
(a) at a police station,
(b) at a hospital, or
(c) at or near a place where a relevant breath test has been administered to the person concerned or would have been so administered but for his failure to co-operate with it.
This section governs where the breath test can be required. In practice it is normally at the police station. The Law was amended to allow police officers to take breath samples at the roadside but at present there are no portable machines approved to be able to do this. So it is likely to just be at the police station.
(2A) For the purposes of this section “a relevant breath test” is a procedure involving the provision by the person concerned of a specimen of breath to be used for the purpose of obtaining an indication whether the proportion of alcohol in his breath or blood is likely to exceed the prescribed limit.
(2B) A requirement under this section to provide specimens of breath may not be made at or near a place mentioned in subsection (2)(c) above unless the constable making it—
(a) is in uniform, or
(b) has imposed a requirement on the person concerned to co-operate with a relevant breath test in circumstances in which section 6(5) of this Act applies.
(2C) Where a constable has imposed a requirement on the person concerned to co-operate with a relevant breath test at any place, he is entitled to remain at or near that place in order to impose on him there a requirement under this section.
The sections above providing rules for how the breath test should be taken at the roadside are of little interest or use at the moment given that there are no machines in operation capable of doing this. It does not mean that all breath tests have to be taken by an officer in uniform, at the police station it can be any officer.
(2D) If a requirement under subsection (1)(a) above has been made at a place other than at a police station, such a requirement may subsequently be made at a police station if (but only if)—
(a) a device or a reliable device of the type mentioned in subsection (1)(a) above was not available at that place or it was for any other reason not practicable to use such a device there, or
(b) the constable who made the previous requirement has reasonable cause to believe that the device used there has not produced a reliable indication of the proportion of alcohol in the breath of the person concerned.
When can you be asked to give a blood or urine test?
The sample must be of breath unless –
(3) A requirement under this section to provide a specimen of blood or urine can only be made at a police station or at a hospital; and it cannot be made at a police station unless—
Note here that the requirement must be made at a police station or hospital but that the sample does not have to be taken at the police station or hospital. Russell (RUC Superintendent) v Devine  UKHL 24;  1 W.L.R. 1187. So a police officer having requested the sample at the police station could take a suspect to a Doctor’s surgery for the sample to be taken.
(a) the constable making the requirement has reasonable cause to believe that for medical reasons a specimen of breath cannot be provided or should not be required, or
(b) specimens of breath have not been provided elsewhere and at the time the requirement is made a device or a reliable device of the type mentioned in subsection (1)(a) above is not available at the police station or it is then for any other reason not practicable to use such a device there, or
(bb) a device of the type mentioned in subsection (1)(a) above has been used (at the police station or elsewhere) but the constable who required the specimens of breath has reasonable cause to believe that the device has not produced a reliable indication of the proportion of alcohol in the breath of the person concerned, or
(bc) as a result of the administration of a preliminary drug test, the constable making the requirement has reasonable cause to believe that the person required to provide a specimen of blood or urine has a drug in his body, or
(c) the suspected offence is one under section 3A or 4 of this Act and the constable making the requirement has been advised by a medical practitioner that the condition of the person required to provide the specimen might be due to some drug;
but may then be made notwithstanding that the person required to provide the specimen has already provided or been required to provide two specimens of breath.
If the suspect is at the police station the police have to ask for a breath test as opposed to blood or urine unless one of the 5 conditions above exists. Essentially there are 3 categories – relating to either medical, machinery or drugs.
Examples of when you can be asked for a blood or urine sample
Medical – Section 7(3) (a) Road Traffic Act 1988
This is where the police officer believes that a breath sample cannot be given because of a medical reason. For example if someone has a chest infection and is unable to blow hard enough on the machine. The medical reason is not limited to chest complaints and can be anything that the police officer believes is a medical ground. The officer can come to this conclusion either from a medical practitioners advice, by the suspect telling him of a condition. The officer has to have reasonable grounds to believe that medical reasons exist for being unable to provide a breath specimen. It is an objective view and it does not matter that the officer does not believe it himself. So if the officer believes that the suspect can provide a specimen but decides to give him the benefit of the doubt and ask for blood then the Officer will have to show that there was reasonable grounds for someone to believe that the suspect could not provide.
One of our cases at Banbury Magistrates considered this situation. Our client was asked to provide a breath sample, he did not reply, he merely thumped his chest. The officer believed that he was being difficult and pretending that he had a heart condition, he decided that he would ask for blood even though he did not believe him. The defendant later argued that because the police officer did not believe he had a heart condition he had no right to ask for blood and therefore the blood sample was invalid. The court relied upon White v Proudlock 1988 R.T.R. 156 and said that it was reasonable to believe that the suspect had a heart condition and although the individual officer did not believe it there were grounds to believe that he could not provide for medical grounds.
If the suspect attempts to provide a breath specimen and does not blow for long enough or hard enough then the machine registers it as a fail. The Police officer has a choice at this stage, if he believes that there is a genuine medical ground he will ask the suspect to provide a blood or urine specimen. If he does not believe it is genuine then he will charge the suspect with failing to provide a specimen Section 7 (6) Road Traffic Act 1988.
Breathaliser not working – Section 7(3) (b) and (bb) Road Traffic Act 1988
This is where either the machine is not available Section (7(3) (b)) or practicable to be used OR where the machine has been used but the police officer has reasonable cause to believe that it is not working properly.
The machines perform a calibration test and see here for how the machines work. If the machine fails the calibration test then it is to be consider unreliable. It does not matter by how little it fails.
If this is the case, or for any other reason the machine seems defective then the can ask for a specimen of blood or urine under section 7 (4). There is no requirement on the police to do this thought, they are allowed to simply take the motorist to another police station for a breath test. (Denny v DPP  RTR 417.
The machine will provide 2 samples of breath, if they are more than 15% apart then this is an indication that the machine is not working properly.
What constitutes unreliable? Various different cases have dealt with what amounts to unreliable. Some giving obvious decisions, some less so. The fact that it can’t provide a print out because the printing paper was tangled did not show that the machine was unreliable. (Morgan v Lee  RTR 409) The fact that the police officer forgot to switch the modem switch on did not make it unreliable. (Jones V DPP  Crim L.R. 656.
Human errors do not render a printout inadmissible, spelling a suspect’s name wrong does not make it unreliable Burditt v Roberts  Crim L.R. 636
All of these are hard to argue against but then you get cases like –
Slender v Boothby (1984) 149 JP 405 stated that the fact that the machine was not programmed to show the correct date on a leap year and 1st March instead of 29th February meant that it was not a reliable machine. This was questioned in Gilligan v Tudhope 1986 S.L.T. 299. The court said that when deciding whether a machine was reliable the key factor was the ability to perform its function of analysing the alcohol in breath.
In Haghigat-Khou v Chambers the court decided that the fact that the printer was not working meant that the machine was not reliable and the officer was entitled to insist on asking for a blood sample. The difference here from Morgan v Lee was that the officer knew in advance that the printer was not working.
The courts have moved towards saying that whether the machine is reliable is a subjective test, that is to say it is up to the officer at the time to decide whether the machine was reliable or not and unless his decision was one which no police officer acting reasonably could have made then his decision is to be accepted. In Carson v Orr (1991) 1993 S.L.T. 537 The machine gave 2 printouts, one of 87 and the other 58. The guidelines are that they should not be more than 15% apart. These were way outside that range yet the court decided that the results were not so absurd that no police officer acting reasonably could have regarded them as coming from a reliable machine. In other words they were not so absurd that every officer would think that the machine was faulty.
The question of whether or not the machine is reliable is argued by both side. If the police officer does not require blood the defence will argue that the machine was unreliable, however when the officer does require blood the defence will say that the machine was reliable and he had no right to ask for blood.
What happens if the officer asks for blood because he thinks the machine is unreliable, are they stuck with blood?
Once the police decide that the machine is unreliable and require blood then they have to rely upon the blood sample. They cannot revert back to the breath sample. (Badkin v DPP  R.T.R. 401) The breath test results can be used to show that the blood test is accurate (Slasor v DPP  R.T.R. 432) where a blood sample is challenged on the grounds that it may be contaminated the prosecution are allowed to give the court the breath test results to show that the 2 results were compatible. They will however need an expert to explain them ,a police officer is not capable in law of doing this.
Finally on this point, this section also allows the police to take blood where there is a reliable machine but it is not practicable to use it. This will include where there are no trained police officers in the station (Chief Constable of Avon and Somerset Constabulary v Kelliher  Crim L.R. 635
Suspected Drugs – Section 7(3) (bc) and (c) Road Traffic Act 1988
This is where either the police officer who performed the preliminary test believes the suspect has drugs in his body or the offence being investigated is driving under the influence of drink or drugs (Section 4 Road Traffic Act 1988) or causing death by careless driving when under the influence of drink or drugs (section 3A Road Traffic Act 1988)
Drugs include ‘something given to cure, alleviate or assist an ailing body’ although it is now defined as any intoxicant other than alcohol. An intoxicant is any substance that affects the self control of the body. Section 11 Road Traffic Act 1988.
A diabetic how took the wrong dose of insulin and became incapable of driving a car could be charged with driving under the influence of a drug. (Armstrong v Clark  1 All E.R. 433)
Section 7 (3) (c) requires a medical practitioners advice, this doesn’t mean that the police cant seek that advice, so if a motorist passes the breath test but the police officer still suspects that the motorist has some intoxicant in his body he is entitled to ask a medical practitioner if it is due to drugs and if the answer is yes then he is entitled to ask for a blood or urine test.
There has to be a statement from the medical practitioner to the effect that he believes that he believed that drugs were a possible cause for the defendant’s condition.
Normally there will be expert evidence adduced at court by the prosecution about the degree of the defendant’s impairment. The prosecution can however proceed without the expert’s evidence. It would seem that the court are entitled to take into account the manner of driving, the fact that drugs are present in the defendants body and the known effects of those drugs. Leetham v DPP  R.T.R. 29.
Blood or urine? Who decides?
(4) If the provision of a specimen other than a specimen of breath may be required in pursuance of this section the question whether it is to be a specimen of blood or a specimen of urine and, in the case of a specimen of blood, the question who is to be asked to take it shall be decided (subject to subsection (4A)) by the constable making the requirement.
The police officer has the choice of whether it is to be blood or urine. The motorist does not get the choice. If however a medical practitioner is of the opinion that for medical reasons a specimen of blood cannot be taken then the police have to take urine.
Section 11 (4) of the Road Traffic Act makes it clear that a person has to give consent for his blood to be taken. He has to give consent initially to the police officer and then again to the medical practitioner taking it at the time it was taken. (Friel v Dickson  R.T.R. 366) If there is no evidence that he gave consent to the doctor at the time then the prosecution will fail.
In this guideline doctors are advised that they also have to assess whether the suspect is able to give consent.
It is for the doctor to decide how and where the sample should be taken. The defendant cannot insist which part of his body the blood is taken from.
(4A) Where a constable decides for the purposes of subsection (4) to require the provision of a specimen of blood, there shall be no requirement to provide such a specimen if—
(a) the medical practitioner who is asked to take the specimen is of the opinion that, for medical reasons, it cannot or should not be taken; or
(b) the registered health care professional who is asked to take it is of that opinion and there is no contrary opinion from a medical practitioner;
and, where by virtue of this subsection there can be no requirement to provide a specimen of blood, the constable may require a specimen of urine instead.
(5) A specimen of urine shall be provided within one hour of the requirement for its provision being made and after the provision of a previous specimen of urine.
For this reason the police normally choose blood, if choosing urine then there has to be 2 samples within a hour and this is not always possible.
This is set down so that there is a finite time given for the defendant to provide the second sample, the first is like a cleansing and is not used. If the second sample is not given within an hour then the defendant will be charged with failing to provide.
A police officer does not have to extend the 1 hour time limit but if he does then the sample is admissible (Roney v Matthew  R.T.R. 273 and Standen v Robertson  329)
A urine sample does not have to be taken by a medical practitioner.
What if you don’t give a sample?
(6) A person who, without reasonable excuse, fails to provide a specimen when required to do so in pursuance of this section is guilty of an offence. This is known as failing to provide a drink driving specimen.
This is an offence regardless of whether the defendant was arrested or not. There is no requirement to arrest someone. Nor is it a defence if the person has been wrongly arrested. It is irrelevant whether there has been an offence under section 4 or 5 of the Road Traffic Act 1988. The fact that the defendant can later prove that he has not driven may be mitigation but it is no defence.
Where the defendant was driving or attempting to drive then the court must disqualify under Pt I of sch 2 to the Road Traffic Offenders Act 1988. Where the defendant was not driving nor attempting to drive then the court have a discretion as to whether to disqualify. If they do not disqualify then they must impose 10 penalty points unless there are special reasons not to. In McCormick v Hitchins  R.T.R. 182 the court found special reasons on the grounds that (a) he had no intention of driving and (b) could not have been a danger on the road.
What is meant by ‘refuses’?
The fact that a defendant changes his mind after refusing is not enough to avoid a charge. He will still be said to have refused. It will however depend upon the circumstances, in Smyth v DPP  R.T.R. 59 the defendant refused but then 5 seconds later agreed. The court said that in these circumstances it could not be said that he had refused. In Plackett v DPP  EWHC 1335 the motorist refused to provide 2 specimens but then left the room to speak to the duty solicitor, when he returned he said that he wanted to take the test. The police had started the operating cycle of the machine and he was then only given 1 minute instead of 3 to provide the test. The court said that he had not been given a proper opportunity to provide a specimen of breath.
If a motorist refuses to provide a sample of blood but offers to provide urine instead he is guilty of failing to provide. (Grix v Chief Constable of Kent  R.T.R. 193)
If a motorist provides one sample but is unable to provide another he is guilty of failing to provide a specimen, even if the first sample was below the limit.
(7) A constable must, on requiring any person to provide a specimen in pursuance of this section, warn him that a failure to provide it may render him liable to prosecution.
If you have been charged with any offence listed here we can help. Call us on 01623 397200 for a free initial assessment of your case.