Drinking and Driving and You

Legislation in relation to drinking and driving has been in place for many years – the necessity of legislating against drinking alcohol and driving has achieved wide acceptance in the community.

However many drivers still remain ignorant of the precise powers in which the police have to request specimens of breath. Others mistakenly believe that if they have not been driving (or have consumed alcohol after driving) they do not have to provide specimens of breath or that, if they do, it is better to refuse as any such specimens would not be accurate.

This is to misunderstand the law.

A police officer has the right to request the driver of a motor vehicle to provide him with a specimen of breath if he suspects that person has consumed alcohol. A small road side screening device is used; if the drivers breath specimen contains alcohol above the permitted level the driver will be arrested and taken to a police station where more accurate specimens that may be used in Court proceedings can be taken from him.

If a driver refuses to provide a roadside specimen the police officer concerned is entitled in any event to arrest him and take him to a police station. The specimens provided at the police station are those which are crucial which are used in any subsequent court proceedings.

Samples provided to any Essex police station are taken by a machine called an intoximeter which is programmed to give an accurate reading of the suspects level of alcohol.

If the suspect has been arrested lawfully then, upon request by a police officer to provide two specimens on the intoximeter, he or she must comply – failure to do so amounts, unless there is a reasonable excuse, to an offence of failing to provide. There may be a reasonable failure to provide where, for example, the suspect suffers from shortness of breath caused by severe asthma. In those circumstances, the police may invite the suspect to provide either blood or urine samples. Here it is the police officers decision rather than that of the person concerned and almost invariably the police will request samples of blood.

Individuals who have not been driving at all, or who may have consumed alcohol after driving but before the arrest, may (wrongly) feel that it is better not to provide specimens of breath at all. The position is it is almost always better to provide specimens of breath at the police station and later to challenge any allegation of driving with excess alcohol (by use of evidence as to the true position) than it is to fail to provide specimens of breath in the first place. The only defence open to somebody who fails to provide specimens is that it was reasonable for him to fail to do so.

Refusal by a person who simply thought that the provision of specimens was ‘unnecessary’ or ‘wrong’ will not be considered by the courts to be a ‘reasonable’ excuse; a conviction for failing to provide specimens of breath for analysis will inevitably follow in such circumstances.

The courts’ approach to the offence of failing to provide specimens of breath for analysis is to regard it as a form of driving with excess alcohol (which it is) but to regard it as an aggravated form, that is to say to treat it even more seriously than the simple of offence of driving with excess alcohol itself.