Refuse breath test
July 10, 2019 admin
A breathalyzer is a device that police use for estimating blood alcohol content (BAC) from a breath sample of someone they believe to be over (exceeding) the legal limit one is allowed by the law. The action of giving a breath sample is called a ‘breath analyses.
When a driver of a motor vehicle is believed to be driving under the influence of alcohol, he or she is required by the law to give a breath analysis and refusing to do so, or failing to provide a sufficient breath sample is known as ‘Refuse Breath Test’.
Likely penalties for refusing a breath test
Refusing a breath test is an offence on its own, refusing to give a breath sample on the grounds that you wanted to seek legal advice before doing so cannot be used as a defense in court and this offence is dealt with the same as a High Range Drink Driving PCA and so the penalties are the same.
No matter how many driving offences you have on your traffic record it is at the courts discretion whether or not to convict you for refuse breath test. If the court decides not to record a conviction against you for this offence then you shall not be disqualified from driving. The discretion not to impose a conviction against a person found guilty of a low range PCA as stated in Section 10 of the Crimes (Sentencing Procedure) Act.
The court must disqualify you from driving for the minimum period set by the law if the court chooses to convict you for a mid-range PCI offence and likewise they cannot impose a longer driving ban than the maximum set by the law.
Unless you can show the court a good reason why you can your license should not be disqualified then you will be disqualified for what is known as ‘The automatic period of disqualification.
If the court decides that they would like to record a conviction against you for the refuse breath analysis then the following penalties will apply:
- A maximum fine of no more than $3,300.00A maximum custodial sentence of no more than 18 months
- An unlimited maximum disqualification period set by the court disqualification period of a minimum of 12 months
- An automatic disqualification period, in the case of refusing a breath test, 3 years’ maximum fine of no more than $5,500.00A maximum custodial sentence of no more than 2 years
- An unlimited maximum disqualification period that is set by the court minimum disqualification period of no less than 2 years
- An automatic disqualification period, which is 5 years for refusing a breath test
Possible defenses for refuse breath test
A defense on refusing to submit a breath analysis due to medical reasons may be provided to the prosecution if enough evidence is provided to satisfy the court.
You were not the driver of the motor vehicle:
It must be established by the police that you were the driver of the motor vehicle on a public road and must provide substantial evidence of this as there have been situations where the defendant was not actually seen driving the vehicle and was subject to a breath test without a police officer witnessing the event.
Breathe test in your usual place of residence:
The police committing the unlawful act of trying to performing a breath test after you have entered the place where you live will lead to the breath test analysis reading to be excluded from the hearing and so lead to the dismissal of the offence.
The two hour breathe test rule:
Also if all breath analysis must be provided within two hours of the time that you were seen driving if you refuse a breath test after the two hours is up then it is not an offence.
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