The Knock-Out Blow: Defences Against Failing to Provide a Specimen of Breath for Analysis

failing to provide a specimen of breath

What should you do if you are stopped by the police for suspected drink driving? Honestly, if you find yourself in a police station being asked to provide a sample fof breath or analysis, the best thing you can do is comply. Failing to provide a specimen of breath is a criminal offence. If you wish to challenge an assumption that you failed, (rather than refused) to provide a sample, then your first step should be to obtain professional legal advice.

As a rough guide, here are some examples of what might (as well as what definitely won’t) constitute a defence.


Anyone suspected of a drink driving offence can be required to provide a specimen of breath – or, failing that, a blood or urine specimen.

You can be required to provide a specimen regardless of whether or not you were arrested. You can also be required to provide a specimen even if you were arrested unlawfully.

If you’re convicted of failure to provide, you’ll face a fine and points on your license – a ban from driving or a custodial sentence are also possibilities.


You will not be able to defend yourself in court against a charge of failure to provide a specimen if you take any of the following approaches to your defence:

  • Pleading that you were detained under the Mental Health Act. As long as you were capable of understanding the breathalyser procedure, you cannot use this as a defence.
  • Maintaining silence throughout your time at a police station. Your right to silence following an arrest does not extend to this procedure.
  • Insisting on seeing a solicitor before providing a sample. This is because suspects have used this as a delaying tactic, hoping they will sober up while waiting for the solicitor to get to the police station.
  • Claiming that one specimen was sufficient. You are required to provide two samples of breath for analysis, and the police will rely on the lower of the two. However, if the single sample you provided was below the limit, that is powerful mitigation and could constitute an defence.
  • Claiming mistreatment or assault by officers at the roadside. However you are treated, you are still obliged to provide a specimen at the police station.
  • Claiming you refused to provide a sample on religious grounds.


If you have a ‘reasonable excuse’ for failing to provide a specimen to the police, you may be able to avoid conviction for failure to provide a specimen of breath for suspected drink driving. However, the question of what constitutes a ‘reasonable excuse’ is generally what troubles the courts.

The following circumstances may amount to a reasonable excuse which could be used as a defence against failure to provide a sample.

  • You were not driving or had no intention of driving at all. In this case, the prosecution would have to prove that the police reasonably believed you were about to drive. These sorts of cases are all different, and legal advice should be taken before deciding whether to plead guilty or not guilty.
  • The breath analysis machine was not working properly. The presumption is that the machines are working properly, so legal advice and possibly an expert’s report are important if this is excuse is to be argued as a defence.
  • A police officer has been too hasty in recording a refusal to provide a sample. If you initially refused to provide a sample, but changed your mind seconds or minutes later, you may have a defence. This is surprisingly common. In a case like this, a court is likely to say that there was no refusal.
  • Your refused to provide a sample of blood on health grounds, or because of a fear of needles. While these reasons may be used as a defence, they should be raised at the police station, so that officers have an opportunity to arrange alternative tests. Generally speaking, some medical evidence of your phobia or health condition would have to be called by the defence in order to support this argument.
  • You insisted on reading the consent form provided by the police before giving a sample. You will probably have a reasonable excuse for failing to provide a sample.
  • You are physically unable to provide a breath sample. This can be hard to establish, since the machines are very easy to blow into and don’t require a huge amount of air. Because of this, having asthma or even having only one lung is usually not enough to establish a defence. However, if you are actively having an asthma attack while genuinely trying to produce a sample, you might have a reasonable excuse.
  • The police refuse to arrange telephone contact with a solicitor before a sample is taken. This is an argument that has been before the courts many times, and it is therefore complicated. If the solicitor is not immediately available, the suspect can be required to provide a sample anyway. Legal advice should always be taken if you are taken to court in these circumstances.


The lists above aren’t exhaustive. It’s worth talking to a specialist solicitor about your case. We’ve defended clients in these situations many times, so if you want to challenge an accusation of failing to provide a specimen of breath for analysis, email, call 0121 201 3765 or get in touch via our website.

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