What is Failing to provide a specimen?
The offence is committed if:
“a person, without reasonable excuse, fails to provide a specimen when required to do so”
This offence will arise when the police alleged that a person who has been requested to provide a specimen of breath, blood or urine, refuses to do so. In many cases this offence arises where a motorist has done their best to provide an evidential specimen or breath at the police station and has been unable to do so, or has been unable to provide blood as the result of a phobia of needles.
What is the penalty for Failing to provide a specimen?
- Fine and/or imprisonment for a maximum of 6 months
- Obligatory Disqualification for a minimum period of 12 months (usually 12 – 36 months)
- If second disqualification within 10 years, obligatory disqualification for a period of 3 years
- If the request was made in connection with an offence of “Being in Charge” disqualification is discretionary and 10 points must be endorsed
What are the defences?
The offence of failing to provide a specimen includes provision that this should be without “reasonable excuse”. If a reasonable excuse is raised for not providing a specimen then you should be acquitted of the offence unless the prosecution can prove (beyond reasonable doubt) that no reasonable excuse existed.
A reasonable excuse will generally be one which prevents a person from physically or mentally being unable to provide it.
Specimens of Breath
Most “reasonable excuses” centre around a persons failure to provide an evidential specimen of breath at the police station. In such circumstances, if a person is unable to provide a sufficient flow of breath into the machine such that it registers a specimen of breath, then no specimen will be provided and this will be considered as a fail and the person will be prosecuted for the offence of failing to provide a specimen. If however, a person can show that there is a genuine physical or mental reason as to why they were unable to provide a specimen and this is accepted as “reasonable” then they will be acquitted. Examples of the types of reasons why a person may not be able to provide a breath specimen include:
- Chest Infection
- Long term smoker
- Small lung capacity
- Physical position when giving the specimen
- Anxiety and panic attacks
In order to support any argument that a medical condition caused you to be unable to provide a specimen, we would in all cases seek to obtain a report from one of our experts explaining why your physical or mental condition prevented you from providing a specimen.
If it is simply the case that you know you tried your hardest yet were still unable to provide a specimen, we can arrange for you to visit one of our experts and undergo a simulation of the breath testing procedure on a similar machine in order to identify any problems which you may have.
Specimens of blood or urine
As with specimens of breath, there may be physical or mental reasons why a person is unable to provide a specimen of blood or urine, these can include:
- Fear or phobia of needles
- Prostate problems
Expert medical evidence should be obtained to support any such reasonable excuse.
As specialists in drink driving we have a detailed knowledge of the defences which may be argued and a comprehensive list of these is provided on our page Drink Driving Defences.
How we can help
As specialist drink driving solicitors we have the technical expertise to advise you on all aspects of your case and will provide you with an open and honest appraisal of your case at the outset. In the majority of cases relating to Failing to provide a specimen, we will be able to clearly advise you of any defence at the outset of your case. In other cases where a defence is not immediately apparent, for instance where we are seeking to challenge a technical or procedural issue, we may advise that further investigations need to be made in order to identify any defence. By way of example, we may need to obtain a copy of the cctv footage of the evidential breath testing procedure at the police station in order to determine whether or not the police have made any procedural errors which may lead to your acquittal.
If we believe that there is no defence available to you we will advise you of the best approach to mitigating (minimising) your sentence, including where possible the avoidance of disqualification on the grounds of “special reasons” and minimising the length of any disqualification imposed. For more detailed consideration of these issues please see our Mitigation page.
In certain circumstances, you may inform us that in view of the consequences of the loss of your licence, including a possible loss of employment and the impact on your family, that you simply wish to delay the process and “buy yourself” time. If this applies to you, please feel free to discuss this with us, as this may be achieved without any increase in the length of disqualification ultimately imposed and in some cases may lead to the discovery of a hidden defence.