Failure to provide specimen for analysis is seen by the courts as an extremely serious offence and is treated almost as severely as drink driving.
If the police suspect that you have committed an offence of drink driving, drunk in charge, driving or attempting to drive whilst unfit through drink or drugs, in charge of a vehicle whilst unfit through drink or drugs or death by careless or dangerous driving they can request that you provide two samples of breath, blood or urine
If you fail without reasonable excuse to provide a specimen of blood, urine or breath for analysis when requested to do so at the police station then you may be guilty of an offence of failure to provide specimen for analysis. This is an offence under s7(6) and s7A of the Road Traffic Act 1988.
The Defence of ‘Reasonable Excuse’ to Failure to Provide Specimen
You would have a defence to the allegation of failure to provide specimen for analysis if you have a reasonable excuse for failing or refusing to provide a specimen. A reasonable excuse is a physical or mental infirmity which prevents you from submitting to a test or where there would be a substantial risk to health in the provision of the specimen.
Examples of situations which have amounted to reasonable excuse include: where the individual suffers from shortness of breath, has respiratory issues (including Asthma) as a result of which they have insufficient lung capacity or are unable to blow into the machine for a long enough period, mental condition either because of the individuals own mental circumstances or as a consequence of the manner in which they were dealt with by the police officers. A genuine phobia of needles may also be considered as reasonable excuse in failing/refusing to provide blood specimen.
To support the defence of Reasonable Excuse, it will be necessary to secure corroborating Expert evidence. We have strong links with well renowned experts who regularly provide medico-legal reports for our clients and even appear at Court to give evidence on behalf of our clients. Many of whom practise from Harley Street in London.
Our specialist solicitors have exceptional knowledge of this complex area and are fully conversant with the law. If you are uncertain as to whether your failure/refusal constitutes reasonable excuse, contact us now for a free consultation and one of our solicitors will carry out an assessment of your circumstances and will advise you.
Procedural Defects
When requesting breath/blood/urine specimens, the police must adhere to certain strict rules and procedures. Failure to comply with stipulated rules could result in a failed prosecution. Upon securing prosecution evidence, our expert solicitors will carry out an assessment of the procedure followed and will be able to determine if there have been any discrepancies.
There have been instances when innocent individuals have incorrectly faced prosecution for failure to provide specimen as a consequence of an inoperative breath test machine. In such situations the police officers have misinterpreted an error message produced by the machine as indicative of the individual being obstructive and failing to provide specimen. In these circumstances we would instruct an expert to assess the work-ability of the machine and determine whether the individual was in fact wrongly charged with the allegation.
The statutory warning that must be given
When asking an individual to take a specimen test, an officer must state that failure to provide specimen could result in a prosecution for a criminal offence. Failure to give this warning could render any refusal or failure to provide a specimen lawful – Please see the Case study below for an example of this.
The relevant legislation is complex and by obtaining expert legal advice at an early stage can increase the chances of you being found not guilty.
Sentence for Failure to Provide Specimen for Analysis
If convicted, the disqualification for Failure to provide specimen for analysis case ranges from the minimum 12 month disqualification to an unlimited period disqualification and a fine of up to £5,000. The court also has the discretion to impose a custodial sentence of up to six months although the sentence of custody is reserved for the most serious cases where there has been a wilful refusal with considerable aggravating features in existence.
For more information on the Sentence you can visit the Magistrates Court Sentencing Guidelines.
Pleading Guilty (in the event there is no defence)
If you do not have a defence to the allegation, then the aim is to carry out damage limitation with a view to securing the most lenient sentence. Our team of solicitors will carry out an assessment of your circumstances to ascertain factors which can be used in preparing your mitigation. We will then instruct a motoring barrister to prepare and present mitigation on your behalf.
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Our specialist representation involves thorough preparation of your case, one of our specialist lawyers are allocated to you personally and are on hand for advice and guidance throughout the duration of your case.
If you are being prosecuted for Failing to provide a specimen of breath, blood or urine, call us now on 0800 6441544 for a free consultation. Alternatively, if you would like us to call you, fill in our Contact us form and one of our specialist failure to provide a specimen lawyers will contact you to discuss your case at a time to suit you.
Alternatively, call us on our London, Manchester, Birmingham, Leeds or Cardiff numbers which can be found on our Contact us page.
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Case Study
A client was charged with Failure to provide a breath specimen at the police station. He was arrested at the roadside and conveyed to the Police Station. When he arrived, he was requested to provide a specimen of breath to which he refused.
He was not warned by the officer that he would be liable to prosecution for Failing to provide a specimen. He was later charged, to appear before the Court.
There is a legal requirement for the police officer who was requesting a specimen to explain that if he failed to provide a breath specimen, he would be liable for prosecution for this offence. The police officer’s failure to follow the correct legal procedure would allow an individual to defend his case and avoid a conviction.
Result: Not Guilty
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