Failing to Co-operate with Preliminary Breath, Drug or Impairment Tests: Elements, Police Powers, Defences and Sentencing

Published by a LexisNexis Corporate Crime expert

Practice notes

Offence of failing to co-operate with a preliminary test

Failing, without a reasonable excuse, to comply with a preliminary test when lawfully required amounts to an offence. This is a summary-only offence. The components are:

failing
to co-operate with
a preliminary test
when required, and
without reasonable excuse

The prosecution must prove each element to the criminal standard, namely beyond reasonable doubt.

Under the Deregulation Act 2015, the previous obligation to carry out a preliminary breath test before evidential breath tests has been removed. Police may therefore proceed directly to evidential breath testing at the roadside where a portable evidential device is available, although the power to require a preliminary breath test remains.

Failing to co-operate

‘Failing’ includes refusing. If a defendant is asked to co-operate with a preliminary test, has the opportunity to do so, yet chooses not to, that is a clear failure to co-operate. At times a defendant may need to wait for a test to be administered. Where a police officer has reason to believe the defendant drank alcohol within 20 minutes prior to...

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Alex McHugh

Pump Court Chambers

Alex McHugh joined Pump Court Chambers following successful completion of his pupillage. His key areas of practice are criminal defence, family, and landlord & tenant disputes. Prior to joining Chambers, Alex worked as a paralegal for a number of years at a Legal 500 firm in London. Two of those years were spent in crime under the stewardship of extremely experienced senior partners. Alex helped manage cases from beginning to end and represented all manner of clients in respect of a full range of alleged offences. As counsel, Alex defends his clients throughout every stage of proceedings. Alex accepts private and, where applicable, publicly funded briefs on road traffic offences, and has experience in representing clients in relation to speeding, drinking driving, “totting up”, and causing injury by dangerous driving offences. Alex predominantly works across the Western Circuit, London, and the South East. ...

Web page updated on 21/05/2026

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