Police Procedure: Evidential Breath Testing

Drink Driving Police Procedure - Evidential Breath Testing

Evidential Alcohol Breath Testing Police Procedure



Anyone convicted of failing to provide an evidential specimen for analysis will be classed as a high risk offender.

A person who, without reasonable excuse, fails to provide an evidential specimen for analysis while driving or attempting to drive a vehicle (failure includes refusal) is guilty of an offence which is punishable by a fine and a mandatory minimum driving disqualification of 12 months. Other sentencing options are available such as community orders and in extreme circumstances a prison sentence.

A person who, without reasonable excuse, fails to provide an evidential specimen while in charge of a vehicle (failure includes refusal) is guilty of an offence which is punishable by a fine and a discretionary driving disqualification or penalty points. Other sentencing options are available such as community orders and in extreme circumstances a prison sentence.


Evidential Alcohol Breath Testing

Once a person has been arrested for an alcohol related motoring offence, the police will require that person to provide two evidential specimens of breath for analysis by means of an evidential breath testing device type approved by the Secretary of State OR to provide a specimen of blood or urine for a laboratory test.

The type of evidential specimen that is required whether it be breath, blood or urine will depend upon the circumstances. However, it will usually be an evidential breath specimen that will be required, unless certain circumstances apply.

s. 7 of The Road Traffic Act 1988 [1] states:

Provision of specimens for analysis.

(1) In the course of an investigation into whether a person has committed an offence [...] a [police] constable may, subject to the following provisions [...], require him—

  1. to provide two [evidential] specimens of breath for analysis by means of a device of a type approved by the Secretary of State, or
  2. to provide a specimen of blood or urine for a laboratory test.

(2) A requirement under this section to provide [evidential] specimens of breath can only be made-

  1. at a police station, or
  2. at a hospital, or
  3. at or near a place where a relevant breath test has been administered to the person concerned or would have been so administered but for his failure to co-operate with it.

A person suspected of an alcohol related motoring offence will be required to provide two evidential specimens of breath. The breath specimen reading with the lower proportion of alcohol will be used as prosecution evidence (if above the legal limit) and the other reading will be discarded.

Before commencing an evidential breath test, a police officer will ask the suspect:

"Have you in the last twenty minutes:
consumed any alcohol?
used any mouth spray?
used any mouth wash?
used any medication?
eaten anything?
inhaled anything?
taken anything?
brought anything up from your stomach?"
(this is asked of Intoximeter EC/IR users only)

If a suspect has done any of the above then 20 minutes must elapse, since the time of the event, before an evidential alcohol breath test can be performed.

If a suspect has been exposed to CS or pepper spray then 30 minutes must elapse, since the time of exposure, before an evidential alcohol breath test can be performed.


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Evidential Breath Specimen Requirement

Once a suspect is deemed ready to take an evidential alcohol breath test the police officer will state the following requirement:

"I require you to provide two specimens of breath for analysis by means of an approved device. The specimen with the lower proportion of alcohol in your breath may be used as evidence and the other will be disregarded. I warn you that failure to provide either of these specimens will render you liable to prosecution. Do you agree to provide two specimens of breath for analysis?" **

A suspect must agree to take the evidential alcohol breath test. If they refuse to do so they will be issued a final warning:

"I warn you again that failure to provide either of these specimens will render you liable to prosecution. Do you now agree to provide two specimens of breath for analysis?" **

If a suspect refuses to provide a specimen of breath after this final warning, the police officer will ask if there are any medical reasons why they cannot or should not provide two specimens of breath as required.

If a suspect agrees to provide a specimen of breath for analysis, the evidential alcohol breath testing procedure will commence. The suspect will be instructed on how to provide the two samples of breath required. If a suspect fails to provide two samples of breath as required and as instructed by the police officer they will be asked once again if there are any medical reasons why they cannot provide the samples of breath as required.

All type approved evidential breath testing devices are designed to allow a suspect 3 minutes in which to provide a sufficient sample of breath.


Medical Reasons

If a suspect cannot or will not provide an evidential breath specimen as required, they will be asked if there are any medical reasons why they cannot or should not provide a breath specimen.

If a suspect states there are medical reasons for not providing a breath specimen as required, then the police officer can request an evidential blood or urine specimen instead.

If a suspect states there are no medical reasons why they cannot provide a specimen of breath but the police officer making the requirement has reasonable cause to believe there are actually medical reasons, then a police officer can request an evidential blood or urine specimen instead.

If a suspect does not state any medical reasons and the police officer has no reasonable cause to believe there are medical reasons for not providing a breath specimen as required, then there is no reasonable excuse why a breath specimen cannot be provided and the suspect will be charged with failing to provide a specimen for analysis.

The police officer is entitled to rely on any answer given by the suspect unless it is obvious that such medical reasons exist.


Evidential Alcohol Breath Test Results

The course of action taken after the evidential breath test has been carried out will depend on the results of the breath test:

Course of Action by Breath Test Result
35 or below = Suspect will not be charged
between 36 and below 40 = Suspect should be released without caution or charge (in serious cases, back calculation is considered)
40 or above = Suspect will be charged accordingly
unreliable results = Suspect may be required to provide an alternative specimen for analysis (blood or urine)
breath testing device unavailable = Suspect may be required to provide an alternative specimen for analysis (blood or urine)

ALCOHOL BREATH TEST RESULT: 35 or below
Suspect will not be charged as the alcohol in their system is within the maximum legal prescribed limit of 35 microgrammes of alcohol in 100 millilitres of breath.

ALCOHOL BREATH TEST RESULT: between 36 & below 40
Although the legal limit is 35 microgrammes of alcohol in 100 millilitres of breath, suspects with breath test readings between 36 & below 40 should be released with caution or without charge. This is because the standard prosecution limit is 40.

In serious cases, back calculation is considered (below 40):
Back calculation is where the police try to prove that a driver who was under the legal limit at the time the evidential specimen was obtained, was nevertheless above the legal limit at the time of the alleged offence. If back calculation is considered, the suspect will be given the option to replace the breath specimen provided to an alternative specimen for analysis (blood or urine).

ALCOHOL BREATH TEST RESULT: 40 or higher
In cases where evidential breath test results are 40 or higher suspects will be charged accordingly.

UNRELIABLE RESULTS
In cases where there is a significant difference between the two breath specimens provided, the results will be deemed unreliable and an alternative specimen for analysis (blood or urine) may then be required, however, an alternative evidential breath testing device could be used instead, if one is available.

BREATH TESTING DEVICE UNAVAILABLE
If a reliable evidential breath testing device is not available or it is not practicable to use one, the suspect will be required to provide an alternative specimen for analysis (blood or urine).

A copy of the evidential breath testing device printout will be offered to the accused in all cases where it is intended to adduce evidence of the proportion of alcohol in a person's breath.


Evidential Alcohol Breath Test Evidence

Evidential breath testing machines produce printouts that are admissible as evidence in a court of law under s. 69 of (PACE) the Police and Criminal Evidence Act 1984 [2].

Minor errors in the printing functions of these machines will not necessarily invalidate the evidence the machines provide as long as it can be proved that the analytical function of the machine was calibrated and it was otherwise in correct working order. Common evidential breath testing machines used by the police force in the UK are the Lion Intoximeter EC/IR, the Lion Intoxilyzer and the Camic Datamaster.


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Reference:

[1] Road Traffic Act 1988

[2] Police and Criminal Evidence Act 1984

** The exact wording any police officer uses when making any requirements may differ depending upon the specific circumstances under which the requirement is being made.

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