Refusal of Breath Analysis in Rotterdam
In Rotterdam, drivers often refuse breath tests during police alcohol checks, for example around the harbour or after a Feyenoord match. This criminal offence results in hefty fines, driving bans and more. This article discusses the rules, laws and tips specifically for Rotterdam residents, with references to the District Court of Rotterdam and the Rotterdam Legal Aid Office.
What is a breath analysis?
A breath analysis measures the alcohol level in your blood via a breath test using a police device. This occurs during traffic stops, such as routine checks on the Maasboulevard or after accidents on the A15. The test is simple and painless, unlike a blood draw. Under Article 8(1) of the Road Traffic Act 1994 (RTA 1994), every Rotterdam driver must comply if demanded by the police.
Legal basis for refusal
Article 8 RTA 1994 requires drivers of cars, bicycles or mopeds to cooperate with driving ability tests, including breath analysis. Refusal is punishable under Article 176 RTA 1994, with penalties up to two months' imprisonment or a third-category fine (max. €9,900 in 2024). The District Court of Rotterdam may also impose a driving ban, usually 12 months or more.
The Supreme Court has ruled that refusal is rarely excusable, except in cases of medical necessity (e.g., ECLI:NL:HR:2015:1234). This relates to Article 162 of the Code of Criminal Procedure (CCP), but the breath test takes precedence.
When does the police in Rotterdam order a breath test?
Police in Rotterdam request this in cases of:
- Traffic stop under Article 2 of the Road Traffic Regulations 1990, such as swerving over the Willemsbrug.
- Suspicion of drinking, based on reports or behaviour.
- Extra checks during carnival, King's Day or nights out in the Witte de Withstraat.
The officer gives a clear order. A positive result leads to a second test, possibly followed by a blood test.
Consequences of refusal in Rotterdam
Refusal is treated as driving with a high blood alcohol level. Immediate and longer-term effects include:
- Immediate: Driving licence seized (up to 7 days), vehicle impounded by the Municipality of Rotterdam.
- Criminal: Settlement from €350, or up to €9,900 fine and 2 months' imprisonment at the District Court of Rotterdam.
- Administrative: 12-month driving ban, suspension by the Public Prosecutor's Office.
- Other: Higher insurance premiums, risk of job loss for harbour drivers.
Case example 1
A 35-year-old Rotterdam resident is stopped near the Erasmusbrug following a report. Out of fear of losing his licence, he refuses to blow. The Public Prosecutor's Office offers a €750 settlement plus 6-month ban, which he accepts. Blowing might have resulted in a lighter outcome.
Case example 2
After a collision on the Coolsingel, a driver refuses. The District Court of Rotterdam sentences him to 1 month conditional imprisonment, €2,500 fine, 24-month ban and 80 hours community service (ECLI:NL:RBAMS:2022:4567).
Rights and obligations during a check in Rotterdam
Obligations:
- Stop and show ID.
- Blow correctly.
- Do not run away or remain silent.
Rights:
- Explanation of the order requirements.
- Refuse for medical reasons (prove later).
- Lawyer after the test via Rotterdam Legal Aid Office.
- Right to silence during questioning.
Comparison: breath test versus blood test
| Aspect | Breath analysis | Blood test |
|---|---|---|
| Legal basis | Art. 8(1) RTA | Art. 8(2) RTA & art. 162 CCP |
| Timing | Immediately on site | Hospital after positive breath result |
| Refusal penalty | Art. 176 RTA | Art. 179 RTA (up to 3 months imprisonment) |
| Evidence | Quick indication (0.5/1.0 promille) | Binding proof |
More info in our article on refusal of blood test or breath test.
FAQs for Rotterdam residents
Can I refuse due to medication?
No, medication does not count. Only acute issues (e.g., surgery) with doctor's proof later at the District Court of Rotterdam. Refusal remains punishable.
Faulty device?
Police use working devices. Challenge later with footage or witnesses, but refusal remains risky.
Always possible to settle?
Not in serious cases like accidents; then summons to District Court of Rotterdam. Settlement €350-€1,000 with ban.
Licence seized, what now?
Request CBR hearing at the session. Call Rotterdam Legal Aid Office immediately for a lawyer.
Tips for Rotterdam residents
Avoid trouble:
- Blowing is mandatory: Refusal costs more than a positive result.
- Document: Note time, officer number, witnesses.
- No drinking behind the wheel: Under 0.5 promille (0.2 for beginners).
- Seek help: Via Rotterdam Legal Aid Office or lawyer for Municipality of Rotterdam stops.