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Writer's picturePatrick Horan

What is the penalty for refusing a breath test?

Updated: Sep 17




THERE ARE TWO DIFFERENT TYPES of breath test that the police can require of you.

One is at the roadside and the other in the police station.

 

Just say you’re driving, and you come to a mandatory checkpoint.

Mandatory checkpoints are checkpoints that are authorised by an Inspector. They’re special checkpoints. They give the police enhanced powers.

They’ve become fairly common around the country over the last few years.


You will be familiar with them. Sometimes referred to as ‘super checkpoints’ these often involve 2 or more police officers with a number of police vehicles and lots of flashing safety beacons.


"no you don’t get to choose whether
you’ll give breath or go down the blood/urine route.
The police have the ultimate say here.
If they choose breath, then this is what you must give"

 

The police have greater powers here.


They can stop any motorist and demand a specimen of their breath or saliva.

The breath specimen detects whether alcohol is present in their breath.

The saliva specimen detects the presence of illegal drugs.  


And they can do this, even if they haven’t the faintest idea whether you’ve consumed alcohol or drugs.

Like I said, these checkpoints are special.

 

You might not like the idea of having to provide a specimen of breath or saliva, especially if you haven’t consumed alcohol or drugs.

That’s understandable.


But this is a ‘public policy’ decision; in other words, a policy designed to help the public.  

And most people would agree that detecting intoxicated drivers on the roads is a public good.

So, a law was passed to create these particular checkpoints.


But to prevent abuses, the law required that if these checkpoints were to be set up, they would have to be authorised by an Inspector or above.  


______________

 


SO, IMAGINE YOU COME to one of these mandatory checkpoints and out of resentment or irritation you refuse to provide a breath or saliva specimen?

What happens?


You will be arrested.

You will be arrested because the law allows the police in these circumstances to demand a specimen of breath or saliva from you, whether they think you’re under the influence or not.

Now, before you refuse, you’ll likely have been already warned that if you refuse you will be arrested.


Once that happens you will be taken from your vehicle and brought to a police station. Then, you will be required to either provide a breath specimen in the station, or a doctor or nurse will be called.

The doctor or nurse will take a blood specimen from you if you choose.

Alternatively, if you’re afraid of needles (you’d be surprised by how many members of the public are terrified of needles) you can opt to provide urine.

 

Getting back to breath specimens.

So, you’ve been brought to the police station

Now that you’ve refused to provide a roadside breath test you really need to provide a breath test in the station if this is the procedure the police now choose to pursue.



"The usual terminology is
“I asked him whether there was any medical reason
he would be unable to provide breath specimens,
to which he replied ‘No’”
[transcript from prosecution file]"

Just on that, no you don’t get to choose whether you’ll give breath or go down the blood/urine route.

The police have the ultimate say here.

If they choose breath, then this is what you must give.

 

 

When a person is arrested, they can be required to provide a breath test.

But they can also be required to allow a doctor or nurse take a blood specimen or provide a specimen of urine.

Why both?

Why breath and/or blood/urine?

 

Before you are required to provide two specimens of breath (you will be told how) and will be given ‘legal warnings’. These warnings advise you that if you don’t comply, you’ll be breaking the law and could face serious penalties.

More on those later.  

 

Just say you are required to provide a breath test.

Just say you try your best but because of asthma or some other medical condition you cannot provide the two breath specimens.

You are trying but you just cannot.

You are required by law to provide breath, but you can’t. Have you broken the law by failing or refusing to provide a breath specimen?

Possibly.


"While you’re entitled to call a lawyer
whenever you’re arrested, it’s difficult
to get hold of many of them at 3am.
And even if you could, what would a lawyer advise you?
They’d advise you to provide the breath specimens
or cooperate with the blood or urine route"



You’re not actually refusing but you are failing. But you do have a medical complaint. If you are suffering from asthma, you really shouldn’t be required to provide breath.

Why?

Because before you are asked to provide the breath specimens you should be asked whether there are any medical reasons that would prevent you from providing breath.


The usual terminology is “I asked him whether there was any medical reason he would be unable to provide breath specimens, to which he replied ‘No’” [transcript from prosecution file].


Once the police officer is satisfied that you’re not suffering from asthma or chronic obstructive pulmonary disease (COPD) they will require you to provide two specimens of breath.

And you must do this.


The police officer will advise you that you if you don’t provide the breath specimens you will be breaking the law and if convicted you will face a disqualification from driving for 4 years.

You’ll also face a fine of potentially €5,000 as well as a risk of 6 months in jail.


______________

 

PRETTY HEAVY STUFF BUT when legal warnings come with severe sanctions (as these do) you can understand the particular heavy emphasis that the law places on it.

You're being given severe warnings.

The reason these warnings are being given is because of the serious consequences that you will face if you refuse.


And if convicted you will definitely be put off the road for 4 years.

This is not some choice that the judge has: the law mandates that the judge do this.

There is no sympathy here for those who refuse.

Disqualification is mandatory.





 

Getting back to breath.


If you’re required to provide breath but due to some medical issue cannot, then a doctor or nurse should be called.

The doctor or nurse will then deal with the blood or urine requirement.


So having accepted that you may have a medical complaint that legitimately prevents you from providing breath, the police now call a doctor or nurse to pursue the blood/urine route.

And that is the reason why the law states that a police officer may require you to provide two breath specimens as well as the blood/urine path.

 

What about not getting a call to your lawyer while in the police station to ask them for their advice? Is that a ‘way out’ of any possible prosecution?


No. While you’re entitled to call a lawyer whenever you’re arrested, it’s difficult to get hold of many of them at 3am. And even if you could, what would a lawyer advise you?

They’d advise you to provide the breath specimens or cooperate with the blood or urine route.

Why?


Because the law requires that you provide these specimens once you are lawfully arrested. It’s a requirement. And your lawyer cannot tell you not to cooperate with this process because to do so would be advising you to break the law. And they can’t do that.


___________


What’s the lesson or "takeaway" as they say in Hollywood?

What message should you take away after having read this?


If you’ve been arrested on suspicion of intoxicated driving and are required to provide breath, blood or urine, just cooperate.


It's really in your best interests.


Otherwise it becomes very hard to stay on the road.

 

 

 

 

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