Failure to provide a specimen of breath / blood / urine

A person who either refuses or is unable to provide a breath / blood or urine sample when requested to by an officer may be liable for an offence, unless they have a reasonable excuse for not doing so. The ban imposed for this offence is the same as the 12 months minimum, but magistrates will normally look to give a ban of 18 – 24 months unless good mitigation is shown.

Case study

Our client was stopped by police and failed a roadside breath test. He had a back problem that required him to take powerful painkilling medication, and his back began to hurt after he was stopped. He took 2 painkillers and these subsequently reacted with the alcohol and he became disoriented and dizzy. He was unable to blow into the breathalyser at the police station and he was charged with Failure to Provide a Specimen of Breath.

We commissioned medical reports on his behalf supporting the existence of his medical condition and also of the likely effect on an individual of mixing alcohol and that type of painkiller. It was shown that, while there was no adequate warning on the painkillers’ packaging, mixing them with alcohol could lead to severe disorientation.

The court considered this a reasonable excuse for not providing a breath sample.

Verdict: Not Guilty

The Law

The framework for this area of law is contained in the Road Traffic Act 1988, but the most contentious area of law which is relevant for cases involving a failure to provide a sample are contained in dozens of previously decided cases from the Court of Appeal and other higher courts. This is the law that relates to what amounts to a “reasonable excuse” as considered in the Road Traffic Act. A reasonable excuse can often be a medical condition, but may include the mental state suffered by an arrested person after inappropriate behaviour by police officers. It could even include a psychological condition, such as an aversion to hypodermic needles, although this has to be more than just “not liking needles”.

It is necessary to prove the existence of a reasonable excuse, by either producing expert evidence, or bringing alternative evidence of what happened at the police station.

The necessity of being warned of prosecution

When asking somebody to take a breath test, an officer must state that failure to provide a sample could result in a prosecution for a criminal offence. Failure to give this warning could render any refusal to provide a specimen lawful.

Must a person have been driving to be required to give a breath sample?

To request a driver to provide a sample, a police officer must only suspect that a person has been driving the vehicle whilst over the limit. So if someone is later proven to not have been driving, then if they have provided a sample, they will not be guilty of Driving with Excess Alcohol. However, if they have refused to give a sample, even of they never drove, they could be guilty of Failure to Provide a Specimen of Breath.

Does a person have a right to have a Lawyer before the procedure?

Although there is a right to speak to a solicitor on the phone while in custody, the law says that this does not take precedence over the necessity for the breath test to take place in time to give a reading before the blood alcohol level drops in the arrested person.

The higher courts have been dismissive of most but not all attempts to show that an individual denied of legal advice before the breath test procedure is entitled to an acquittal. It is usually only in more extreme cases, where bad faith on the part of the officers can be shown, or where there are other severe lapses in officers’ conduct, that the absence of a lawyer before the procedure might become significant.

Sentencing

The sentencing guidelines for failure to provide a specimen of breath, (or a blood sample etc) are similar to those for Driving with Excess Alcohol. The Magistrates Association Sentencing Guidelines state that courts should consider a starting point of 18 months as the length of ban. The existence of other aggravating features (which make the offence worse), such as running from the scene of an accident, or evidence of high levels of alcohol can increase the sentence. This sentence can include Community Punishment or even a Prison Sentence. A prison sentence has to be considered by the magistrates for a second offence within ten years, although not necessarily imposed. The first offence does not need to be for Failure to Provide. It could be another drink related driving offence.

Mitigation

See the section on drink driving mitigation here.

Special Reasons

In circumstances where drinks have been spiked / laced, Special Reasons arguments might be applicable, which could avoid a ban, but only where it is the alcohol itself which has prevented the individual from giving the sample.

Further note

With offences involving failure to provide a breath specimen or other sample, the law relating to whether a failure is justifiable can be difficult. If you are in any doubt as to whether you are guilty of the above or any other offence, we recommend obtaining legal advice.

To speak free to an expert in our Motoring Department call freephone 0808 155 4870.