Road traffic offences—failure to co-operate with a preliminary test
Produced in partnership with Red Lion Chambers

The following Corporate Crime practice note produced in partnership with Red Lion Chambers provides comprehensive and up to date legal information covering:

  • Road traffic offences—failure to co-operate with a preliminary test
  • Failing to co-operate
  • The three types of preliminary test
  • Preliminary breath test
  • Preliminary impairment test
  • Preliminary drug test
  • When a preliminary test can be required
  • Defences—without reasonable excuse
  • Other defences to refusing a preliminary test
  • Sentence

Road traffic offences—failure to co-operate with a preliminary test

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.

Failing to co-operate

'Failing' includes refusing. If a defendant is requested to co-operate with a preliminary test, and has the opportunity to do so, yet chooses not to, then there is clearly a failure to co-operate.

Sometimes a defendant may have to wait in order for a test to be carried out. Where the police officer has reason to believe the defendant drank alcohol within 20 minutes prior to being stopped by police, the officer is required to wait 20 minutes before administering the test.

A defendant may have to wait for the relevant testing equipment

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