Before the police launch a full investigation into whether or not you were over the drink drive limit, they will usually want to conduct a preliminary breath test. This test does not have any evidential value in a criminal court to prove that you were over the drink drive limit but it enables the police to arrest and investigate you further at the police station.
The rules on the roadside or preliminary testing are outlined in Section 6 of the Road Traffic Act 1988. Upon conviction, this can result in penalty points being recorded against a driving licence.
Failure to provide a specimen of breath, blood or urine has two different maximum penalties if convicted. One applies if you were driving or attempting to drive at the time the police officer initially requested a sample, and one which applies if you were not driving or attempting to drive but you were in charge of a vehicle and both offences can be found at Section 7(6) Road Traffic Act 1988.
The penalties vary for this offence so it is strongly advised that you contact us should you face this charge before the Courts.
It is a defence to the charge to have a reasonable excuse for failing to provide a specimen for analysis. A reasonable excuse can be a medical condition, being physically unable to provide a sample and procedural errors from the police can amount to a defence to this charge.
Do I have a choice of which sample I provide?
An offence of failing to provide a specimen arises from the police suspecting you of either driving, attempting to drive or being in charge of a motor vehicle whilst exceeding the legal limit of alcohol. If a road traffic collision has occurred and the medics attending the scene recommend you attend the hospital then the police are likely to accompany you. It is at the hospital the police could ask for your consent to provide a blood sample. This sample should then be taken by a health care professional. The police may wait and ask for a sample of breath, blood or urine at the police station if it is anticipated that you will not be at the hospital for a lengthy period of time.
If medical treatment in hospital is not required and the police suspect that the person has committed a driving offence of being under the influence of alcohol or drugs whilst driving, attempting to drive or being in charge of a vehicle then they will arrest and transport them to the police station custody suite.
Whilst in police custody the officer will request that you provide two samples of breath using a self-calibrating machine. You do not get the choice of which type of sample you want to provide however, if the officer believes there is some legitimate reason you cannot provide a sample of breath or the machine isn’t working then a blood sample will be offered. If again a legitimate reason or a health care professional isn’t available to take blood then a urine sample will be requested. If the sample requested by the police officer isn’t fully provided then you would be charged with failing to provide that specimen.
What procedures do the police have to follow?
There are different procedures to follow with each specimen. The most common specimen taken in the police station is breath. Prior to the two specimens of breath being taken, the officer should go through a detailed form with you called the MGDD/A. This form can be seen using this link https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/666034/MGDD_A_Ver_8.5_Nov_2017.pdf
There are different forms depending on the test and location of the test and these can be viewed here https://www.gov.uk/government/publications/manual-of-guidance-drink-and-drug-driving-mgdd
The police must also provide you with the statutory warning which explains the implications if you do not provide a sample when requested.
Prior to providing a breath sample the machine should provide a blank reading before you provide your first specimen then another blank ready before the second specimen. If both samples of breath are successfully provided the police will take the lowest reading as evidence. If this reading is below the legal limit then there would not be a case against you however over the legal limit and it is likely you would face a charge and have to attend the Magistrates Court a few weeks after this date.
If a blood sample if requested then this has to be taken by a health care practitioner. It is unlawful for a police officer to take a blood sample and if this did happen then there should be an application for the charge to be withdrawn. The health care practitioner should also ask for your consent before any blood sample is taken. After the blood is taken you should be given the opportunity to take part of this sample to give yourself the opportunity to get it tested.
If a urine sample is requested then the officer must request that you provide two samples within a one hour period. The first sample should be discarded. The second sample is the evidential sample but it is important that this sample is separate and distinct from the first. Part of this sample should then be offered to you. The sample the police retain should have a preservative added to it then sealed and shaken. It will be sent to the laboratory for testing but it must be kept in a fridge otherwise it could become contaminated prior to being tested.
At Blaser Mills Law we are a team of road traffic specialist solicitors that will provide expert legal advice and examine every fine detail of a prosecution to see if we can uncover any procedural error which could lead to an acquittal. If from reading the above you think that the police have not followed the procedure correctly in your case then contact us today and one of our solicitors can discuss this with you. We offer a free initial consultation to discuss these issues prior to any payment being made.
Will I be disqualified from driving for not providing a specimen?
If you plead guilty or are found guilty after trial and therefore have committed an offence of failing to provide a specimen then it depends on whether it was after driving, attempting to drive or being in charge of the vehicle.
Failing to provide a specimen after driving or attempting to drive a vehicle would result in a minimum driving ban of 12 months. This depends mainly on whether a refusal to provide the sample was deliberate and the level of impairment at the time. If the Court feel that both the refusal was deliberate and the impairment was high then the starting point would be 12 weeks imprisonment. The Sentencing Council guidelines are a useful tool https://www.sentencingcouncil.org.uk/offences/magistrates-court/item/fail-to-provide-specimen-for-analysis-driveattempt-to-drive-revised-2017/
Should the offence be a second mandatory disqualification conviction within a 10 year period the minimum disqualification from driving would be 36 months.
If the offence of failing to provide was as a result of being in charge of the vehicle then this is a discretionary disqualification offence with a minimum punishment of 10 penalty points. The guidelines for this offence can be found here https://www.sentencingcouncil.org.uk/offences/magistrates-court/item/fail-to-provide-specimen-for-analysis-in-charge-revised-2017/
What amounts to a reasonable excuse?
A statutory offence to a failing to provide charge is if you have a reasonable excuse for not providing a sample when requested (Section 7(6) Road Traffic Act 1988). A reasonable excuse is typically a medical reason for example if you suffer from severe asthma and this prevented the breath sample being provided. A reasonable excuse could exist if you had a phobia of needles at the time the health care professional requested a sample of blood from you.
Contact us today
If you think a reasonable excuse may exist in your case then contact us today and we are happy to take the time and talk it through with you to establish whether you may have a defence.