Failing to co-operate with a preliminary test
The offence at the roadside
The preliminary test is usually the roadside breath test. A police officer can require you to undergo a preliminary test where he reasonable suspects you were driving, attempting to drive or are in charge of a motor vehicle while under the influence of alcohol or drugs.
There are 3 types of roadside preliminary test:
1. Roadside breathalyser;
2. Preliminary impairment test; and
3. Preliminary drug test.
Roadside breathalyser
This is by far the most common form of roadside impairment test and is the one most people think of when they think of a roadside breathalyser. This is the test that involves you blowing into the breathalyser that the policeman holds after he stops you at the side of the road.
You commit the offence by failing or refusing to co-operate with the roadside breathalyser procedure when required to do so.
Preliminary impairment and drug tests
The preliminary impairment test is designed to catch people driving under the influence of both alcohol and drugs. You will be asked to carry out a serious of simple tests to allow the police officer to decide if you are under the influence of alcohol or drugs. The test may involve walking in a straight line, balancing on one leg, reciting the alphabet and so on.
The preliminary drugs test is akin to the roadside breathalyser in that it uses a machine that analyses a sample from you of either sweat or saliva and detects various drugs that might be in your system. These drug analysers are still undergoing testing and are not widely used.
Sentence for failing to co-operate with a roadside breathalyser
The maximum sentence is a fine of £1,000 and 4 penalty points on your driving licence.
You should remember that if you were to fail to co-operate the police would arrest you and require you to provide a specimen for analysis at the police station, failure to comply with that procedure carries a much heavier sentence.
How we will win your trial
There are two ways that our solicitors will fight your trial. First, your solicitor will look to undermine the prosecution evidence. Secondly, your solicitor will look for a defence to the allegation.
Undermining the prosecution case
There are a number of ways that our solicitors can win your trial by undermining the prosecution case. First, your solicitor will look to cross-examine the police on the procedures they adopted to test whether they followed the correct procedures. If they did not then you will win you case.
Next your solicitor will look to exclude key parts of the prosecution evidence by arguing that it fails to meet the rules of evidence and therefore the prosecution should not be allowed to rely upon it. In many cases this leaves the prosecutor with no evidence he can give to the court, which means you will be found not guilty.
Finally, your solicitor will consider whether the police had the lawful authority to conduct the breathalyser test in the first place. If they do not have reasonable grounds to suspect you of committing an offence then the breathalyser procedure will be invalid and you will win your case. In one case, Nick Diable, one of our solicitors, successfully argued that a police inspector did not have reasonable grounds for suspecting his client of driving after she was found sleeping in a parked car that appeared to have been involved in an accident. Nick won and the client was acquitted.
Defences to failing to co-operate with a breathalyser test
In many cases it will be possible to raise a defence to the accusation. A defence does not dispute that the offence was committed but puts forward a reason that makes your action lawful.
The most common, and successful defence, is that you did not understand what was required of you when the police officer demanded you take the breathalyser test. There can be many reasons for you to not understand from the officer not explaining the test properly through to you having a medical condition that prevented you understanding, e.g. you are deaf. One of our solicitors successfully argued that his client was not guilty because she was so drunk she could not understand what was required of her! The police could not prove she had been driving so she was completely cleared!
You may also have been unable to take the test due to a pre-existing medical condition, such as asthma.
Any legal defence will require advice from a solicitor and, may require expert evidence from an independent expert, such as a doctor. We can arrange the necessary expert evidence for you.
Avoiding a driving ban
Although the penalty for failing to co-operate with a breathalyser test is relatively minor there may be people for whom 4 penalty points will take them over the 12 point maximum, which would mean an immediate driving ban of at least 6 months.
We can help you stay on the road even if you are planning to admit the offence. See our pages on exceptional hardship and special reasons to find our more.
What should I do now?
Being accused of a criminal offence is a stressful time and you may think that it's impossible to defend yourself or save your driving licence. We can review the case against you and give you our expert opinion on the strength of the evidence against, errors made by the prosecution, possible tactics to have prosecution evidence excluded, defences available and whether you can avoid penalty points if convicted. In 99.99% of cases we can provide this review quickly and cheaply so you can decide what to do once you have the full facts and not just the police's version.
You are also welcome to call us and speak with an experienced solicitor about your case for some preliminary advice. Although your solicitor can only give basic advice on the telephone based on what you say you will get an idea of what can be done. There's nothing to pay until you decide to instruct us, so if you decide not to instruct as after speaking on the telephone then it won't cost you a penny.
Feel free to give us a call now on 020 8242 4440 To discuss your options. Or you can send an email via our contact us page.