Your rights and responsibilities when stopped for a breathalyser test

Driving under the influence of alcohol is a serious offense, and the law provides police officers with certain powers designed to ensure road safety. So, if you are stopped by the police and asked to take a breathalyser test, it’s important to understand your rights and responsibilities. In this article, we will examine both.

The legal framework governing breathalyser tests in England and Wales is primarily defined by the Road Traffic Act 1988. Under this act, individuals are required to cooperate with the police when asked to provide a breath sample and have specific rights and responsibilities in such situations.

If stopped by the police, you are legally obligated to provide a preliminary breath sample if you are asked to do so. Refusing to provide a preliminary breath sample without a reasonable excuse is a criminal offense and can lead to serious consequences. A reasonable excuse might include a medical condition that prevents you from providing a breath sample.

However, the police must also have reasonable suspicion that you have been driving, attempting to drive, or in charge of a vehicle while under the influence of alcohol in order to request a breath test. This means they should have a valid reason to believe that you may be over the legal alcohol limit before asking you to take the test.

The preliminary breath test is typically administered at the roadside using a handheld breathalyser. It provides a preliminary indication of whether you are over the legal alcohol limit. The results of this test can lead to further actions, including arrest and being taken to the police station for an evidential breath test – the result of which may be used to prosecute you.

Right to legal representation

After providing the preliminary roadside breath sample, if you are over the legal alcohol limit or the police have other reasons to believe you are under the influence, you will be taken to the police station for an evidential breath test. At this stage, you have the right to request an independent blood or urine test if you believe the breath test is inaccurate or if you have a medical condition that prevents you from providing a breath sample. It’s advisable to consult with your legal representative to ensure your rights are upheld in such situations.

You also have the right to have a legal representative with you when providing a breath sample at the police station. Being aware of this right is crucial when facing the evidential breath test, which determines whether you are over the legal alcohol limit. However, this right does not apply to the preliminary roadside test.

Legal limit

In England and Wales, the legal limit for alcohol in your breath is typically 35 micrograms of alcohol per 100 millilitres of breath. In a blood sample it is 80 milligrams per 100 millilitres of blood, and in a urine test it is 107 milligrams per 100 millilitres of urine.  Exceeding this limit can result in serious legal consequences, including fines, disqualification from driving, and, in some cases, imprisonment.

The impact of alcohol on a person is influenced by factors such as their body weight, age, gender, metabolism, recent dietary intake, the specific type and quantity of alcohol consumed, and their current stress levels. Given the complexity of these variables, establishing a definitive safe limit for alcohol consumption becomes a challenging task. As a result, the most prudent advice is to abstain from drinking altogether if you anticipate needing to operate a vehicle within the next few hours.

The penalties

If you refuse to cooperate in the preliminary roadside breathalyser test when asked by a uniformed police officer, the penalty is four penalty points added to your licence for four years, or a driving disqualification and up to a £1000 fine.

If you are found in charge of a vehicle while above the legal limits the penalties are severe, you may get 3 months’ imprisonment; up to £2,500 fine; and a possible driving ban.

If you are stopped while driving over the legal limits, the penalties increase: you may get six months imprisonment; an unlimited fine; and a driving ban for at least one year. This ban can go up to three years if you are convicted twice in 10 years.

If you are stopped, taken to the station, and refuse to provide a specimen of breath, blood or urine for analysis, you can get the same penalties as being found guilty of driving under the influence: six months’ imprisonment; an unlimited fine; and/or a ban from driving for at least 1 year.

Understandably, if you have been found to have caused an accident as a result of driving under the influence, these penalties can be a lot worse – particularly if it has led to injury or death.

Being convicted of a driving under the influence offense also carries several consequences outside of the legal penalties imposed by the courts upon conviction. First, your car insurance premiums are likely to rise substantially. If you use a vehicle for work purposes, your employer will be aware of this conviction on your driving record, potentially putting your job at risk. Moreover, having a driving under the influence conviction can hinder your ability to travel to certain countries, like the United States.

Nevertheless, there are situations where individuals may have valid reasons to contest the charges. Some might believe that they have been wrongly accused and have a strong case for their innocence. Alternatively, extenuating circumstances may exist that can bolster their defence and lead to a reduction in the severity of the penalties they face.

If you believe your rights have been violated during a breathalyser test or you have concerns about the procedures, it’s advisable to consult with a legal representative who specialises in traffic law. They can provide guidance, ensure your rights are protected, and help you navigate any legal issues that may arise from a breathalyser test. Road safety and responsible driving are everyone’s responsibility, and knowing your rights can help ensure a fair and just process when facing a breathalyser test.

For enquiries and advice on a wide range of legal matters, contact Darren Davies on 01792 439000 or email