What Happens at the Roadside
The Preliminary Breath Test
Under section 6 of the Road Traffic Act 1988, a police officer can require a preliminary breath test if they reasonably suspect you have been drinking, you have committed a moving traffic offence, or you have been involved in an accident. The test uses a handheld screening device at the roadside.
The roadside test is not the evidential test. It provides a pass or fail result and is used to determine whether there are grounds to arrest you and take you to the police station for the formal evidential procedure.
Your Rights During the Test
You have no right to refuse a preliminary breath test without lawful excuse. Refusal is a separate criminal offence under section 6(6) of the Road Traffic Act 1988, punishable by a fine and 4 penalty points. The officer can arrest you if you refuse.
You are not entitled to legal advice before providing the roadside sample. However, you are entitled to be told why you are being required to provide the sample. The officer must also have reasonable suspicion before making the requirement.
What Happens at the Police Station
The Evidential Breath Test
At the station, the custody officer will authorise the breath test procedure. The evidential test is conducted on an approved device, typically the Intoxilyser EC/IR. You are required to provide two specimens of breath. The lower of the two readings is used as the evidential result.
If the lower reading is 35 micrograms or below, you will not be charged. If it is between 40 and 50 micrograms, you have the right to exercise the statutory option and request a blood or urine test instead. If it is above 50 micrograms, the breath reading will be used as evidence.
Blood or Urine Samples
Blood or urine samples may be required if the breath testing device is unavailable, unreliable or if a medical practitioner advises that a medical condition prevents you from providing breath. The decision to take blood or urine is made by the officer, not the suspect.
A blood sample must be taken by a registered medical practitioner or healthcare professional. You are entitled to receive a portion of the sample for independent analysis. Urine samples require two specimens; the first is discarded and the second is used for analysis.
Will I Be Charged?
If the evidential test shows you are over the prescribed limit, you will almost certainly be charged. The charge will be driving or attempting to drive with excess alcohol contrary to section 5(1)(a) of the Road Traffic Act 1988. You will receive a charge sheet stating the date, time and your next court appearance.
In most cases, you will be released on bail to attend the magistrates court. The court date is usually within a few weeks of the charge. Failing to attend court on the specified date is a separate offence that can result in a warrant for your arrest.
What Should I Do After Being Charged?
Seek legal advice immediately. A specialist drink driving solicitor can review the evidence against you and advise on the strength of the prosecution case. Early legal advice is essential because it allows your solicitor to identify any procedural errors or potential defences before your court date.
Gather any evidence that may support your case, including details of what and when you drank, the names of any witnesses and any medical conditions that may be relevant. Do not discuss the details of your case on social media or with anyone other than your solicitor.
Check whether your employment contract requires you to notify your employer of a criminal charge. Some contracts, particularly those involving driving, have mandatory notification requirements. Failure to comply with these requirements could result in disciplinary action.
How a Solicitor Can Help
A specialist drink driving solicitor will examine every aspect of the evidence, including the calibration records of the breath testing device, the police procedure at the roadside and station, and the continuity of any blood or urine samples. Procedural errors can form the basis of a defence that leads to the case being dismissed.
If the evidence against you is strong and a guilty plea is appropriate, your solicitor will prepare a mitigation plea designed to achieve the lowest possible sentence. This includes gathering evidence of the impact on your employment, personal circumstances and any steps you have taken to address your alcohol consumption.