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Failing to provide a sample of breath/blood/urine

If the police have reasonable suspicion that you have either been driving or attempting to drive a vehicle on a road or other public place, you may initially be required to provide a breath sample at the roadside. If you provide that sample and are found to be over the limit, you will usually be taken to a police station to provide a further breath sample on the intoximeter.

There are several offences which are often collectively referred to as “Failing to Provide”. The most common is that is failing to provide a breath sample at the police station ie. failing to provide a specimen of analysis. The offences can be found below:

  • Failing to co-operate with a preliminary test (usually at the roadside)
  • Failing to provide a specimen for analysis (usually breath, but may also be blood or urine)
  • Failing to allow specimen of blood to be subjected to laboratory test (where blood is taken without your consent and you subsequently refuse for the specimen to be analysed)

The penalties for the second and third failing to provide offences above are are similar to those for drink driving and drunk in charge depending whether you are charged with driving and failing to provide or with being in charge and failing to provide. In either case you are at serious risk of losing your licence. You cannot argue exceptional hardship in relation to drink driving/in charge related offences, so it’s therefore important to take proper advice.

If you think your case is defendable, it’s sensible to have this confirmed by an expert. Below are the answer to some of the most frequently asked questions in this area including more information on the penalties for failing to provide a specimen.

Please note we also have separate pages relating to drink driving and drunk in charge offences.


 

These penalties are for a first offence where special reasons are not present:

Failing to co-operate with a preliminary test ie. the breath test at the roadside

4 penalty points or discretionary disqualification

Failing to provide a specimen for analysis ie. breath, blood or urine

When not Driving or Attempting to Drive (in charge):

10 points – 12 months’ disqualification plus possible community order or fine and even up to 6 months’ custody

Driving or Attempting to Drive:

12 -36 months’ disqualification plus possibly community order and even up to 12 months’ custody

Failing to allow specimen of blood to be subjected to laboratory test

When not Driving or Attempting to Drive (in charge):

10 points – 12 months’ disqualification plus possible community order or fine and even up to 6 months’ custody

Driving or Attempting to Drive:

12 -36 months’ disqualification plus possibly community order and even up to 12 months’ custody


 

What if the reason I didn’t give a sample because I hadn’t been driving or attempting to drive?

The law entitles the police to require specimens of breath, blood or urine in the course of an investigation when a person has committed a traffic offence. The police officer need only have reasonable belief that the offence has been committed. Therefore, the fact that you were not driving (even if you can prove it) will not prevent a prosecution for being drunk in charge. The same would apply if you fail to provide a sample simply because you hadn’t had any alcohol.

The defence available for failing to provide is that you had a “reasonable excuse” for failing to provide the sample.

Most frequently this defence is put forward where there are medical reasons for failing to provide the sample. For example, if a motorist is bronchitic, asthmatic or has a medical or physical condition resulting in loss of lung capacity and for this reason is unable to blow into the bag in one continuous breath, or sufficiently hard to operate the Alert, Alcolmeter or Alcosensor.

However the burden of proof to establish that you had a reasonable excuse is on you. Therefore it is almost always necessary to back this up with medical evidence. Once you’ve established a reasonable excuse, the prosecution must then disprove the defence. If they can’t, you should be acquitted.

Can I delay giving the sample until I’ve spoken to a solicitor?

No. There are numerous cases which have dealt with this, and the courts have made it clear that the procedure cannot be delayed for this reason.

What if I couldn’t give a sample for medical reasons?

It could be if you can establish that this genuinely prevented you from providing a sample. However, most people are stressed when being dealt with at the police station, and yet they still manage to provide a sample. The courts may therefore be slightly cynical when this type of argument is put forward. However, depending on whether this argument can be backed up by evidence, it may be possible.

Remember the onus is on you to show on the balance of probabilities, that you had a reasonable excuse (see above).

Our Nottingham Solicitors will advise you as to your genuine chances of putting forward a defence, special reasons or can assist you by putting forward mitigation depending on your circumstances.

 

 

For free advice, speak to a solicitor on our local rate number 0330 1330 081 or, if you prefer, fill out our Contact Form and we'll call you back: usually the same day and often within the hour. You can also email us here.