It is an offence to fail to co-operate with a preliminary test when required to do so, without reasonable excuse.

This is a summary-only offence.

The elements of the offence are:

1. •

   failing

2. •

   to co-operate with

3. •

   a preliminary test

4. •

   when required, and

5. •

   without reasonable excuse

It is for the prosecution to prove the elements of the offence, to the criminal standard beyond reasonable doubt.

The Deregulation Act 2015 (DA 2015) has removed the mandatory requirement for a preliminary breath test to be undertaken before the evidential breath tests are conducted. This therefore gives the police the option to move directly to the evidential breath tests at the roadside where a portable evidential breath test device is available. The ability to require a preliminary breath test remains available.