Failure to Provide Sample

If you’ve been charged with failing to provide a sample of breath, blood or urine then you must act QUICKLY. The police will have arranged the earliest possible court hearing – THEREFORE TIME IS OF THE ESSENCE, AND TIME IS NOT ON YOUR SIDE!

Remember failing to provide a sample of breath, blood or urine will have major repercussions for you, your family and working life: a very high reading could lead to imprisonment.

How will you survive a driving ban of 12 months plus, because that is what you face if found guilty?

Help is at hand but you need to make that first call – for a first consultation – which will not cost you a penny!

The objective is to obtain the best possible outcome for you in a difficult and frightening situation!

This involves, by way of example:

  • Checking police procedures – if they’ve fouled up then that could be the end of the case!
  • Checking the calibration of the breath machine – if it wasn’t operated properly then that could be the end of the case!
  • Checking each and every element of the charge you face – if something has been missed then that could be the end of the case!
  • Checking if there was some interfering substance in the breath sample – if there was then that could be the end of the case!
  • Checking if you have a specific defence – if you have then that could be the end of the case!

The Two Tests – Read More

There are 2 forms of the offence of failing to provide, which can be committed (i) at the roadside, (the preliminary sample) or (ii) the evidential sample, usually at a police station.

1. THE ROADSIDE TEST

The purpose of the roadside sample is to confirm or disprove the officers suspicions concerning whether or not you have been driving with excess alcohol. Such tests should not happen randomly though clients frequently feel, rightly or wrongly, that that is exactly what has happened to them. If, without reasonable excuse, you fail to provide a preliminary sample then you will be prosecuted. The punishment is 4 penalty points, or a discretionary disqualification, and a fine up to £1000: please note that even if it is later proven that you were not over the drink drive limit you can still be prosecuted for the offence.

Loophole

Whilst not technically a loophole, a defence to the allegation is whether or not you had a “reasonable excuse” for failing to provide a sample.

2. THE EVIDENTIAL TEST

The evidential specimen is usually one of breath (though it can be blood or urine) and is normally required of a driver at a police station, following that drivers arrest for failing the roadside test. It is an offence, without reasonable excuse, to fail to provide the specimen required and it carries a maximum prison sentence of 6 months; a fine of up to £5000 and a minimum driving disqualification of 12 months. In my experience if the Magistrates’ believe there is independent evidence of excess alcohol consumption then the disqualification and other punishment can be substantially worse.

Loophole

As in the case of failing to provide a specimen at the roadside, the main defence to the allegation is whether or not you had a “reasonable excuse” for failing to provide a specimen. There is a substantial amount of case law on this subject and an experienced lawyer will be able to advise you which of it is relevant in your individual case.

Examples of successful ‘reasonable excuse’ defences include:

  • A driver who was so afraid of hyperdermic needles as to be unable to provide a specimen; and
  • A female driver who became distraught, could not stop sobbing and had extreme difficulty breathing

These are examples of two cases where the decision of the Magistrates’ Court to acquit has been found to be correct by higher courts, following an appeal by the prosecuton.

LEGAL PROFESSIONAL

Julian Harris

Barrister

T. 07714 302 072

Email. office@speedingbarrister.co.uk