Failing to Provide a Specimen of Breath/Blood

The offence of Failing to Provide a Specimen can be very serious, it can lead to a period of imprisonment in many cases. The maximum sentence is six months imprisonment and a lengthy disqualification.

Pursuant to Section 7 of the Road Traffic Act 1988, in the course of an investigation a police officer can require an individual to provide two samples of breath. This will be provided through an approved device which must be operated correctly and properly calibrated. The request to provide a sample of breath must be made in a police station or hospital, by a constable in uniform in the course of an investigation into whether an offence of driving with excess alcohol has been committed.

The Roadside

The offence can only be charged where it relates to an evidential specimen. This means that if you refuse to provide a sample at the roadside, no offence can be committed under this section. You may be committing the offence of obstructing a police officer but this is a much less serious offence.

A preliminary test may be carried out only if the following apply:

1. an accident occurs owing to the presence of a motor vehicle on a road or other public place,
2. a constable reasonably believes that the person was driving, attempting to drive or in charge of the vehicle at the time of the accident.

At the Police Station

The process will depend on the offence for which you have been arrested. If this is a drink-driving offence then ordinarily you will be asked for a sample of breath. If this cannot be provided then the Police may ask for blood/urine.

If you are asked for a sample of breath you will be taken to the intoximeter and asked to provide two samples of breath. The Officer will direct you about how to use the device.

Procedure

The Officer must follow the relevant procedure. This means following what is known as an MGDD form. If this is not followed completely, it may mean that the driver has a defence to failing to provide a specimen. In particular, the Officer must ensure that they provide you with the statutory warning in accordance with Section 7 of the Road Traffic Act. If the Officer fails to do this, then that is an absolute defence.

Reasonable Excuse

A reasonable excuse is defined as a physical or mental inability. Common examples of this are asthma or needlephobia.

Once a reasonable excuse has been raised evidentially (i.e. there is some evidence of it), it is for the Prosecution to disprove it.

Blood or Urine - an alternative sample

As an alternative, a constable may request a sample of blood or urine. This can also only be done at a police station or hospital, if it is to be made at a police station one the following must be satisfied:

1. That a breath sample cannot be provided for medical reasons;
2. Specimens of breath have not been provided and/or it is not practicable for one to be provided;
3. An approved device has been used but it has not provided a reliable indication;
4. There is reasonable cause to believe the person has drugs in their blood or urine;
5. The condition of the person from which a sample is sought has been confirmed by a Medical Practitioner to possibly be due to consumption of a controlled substance.

Court Proceedings

The first hearing before the Magistrates Court is where a plea is entered, either Guilty or Not Guilty. If a Guilty plea is entered then a mandatory disqualification will follow unless there are special reasons not to disqualify.

If a Not Guilty plea is entered, then the matter will proceed to case management and the matter set down for trial. This will include completing what is known as a Preparation for Effective Trial Form (PET Form).

Disclosure

One area that is regularly challenged is the disclosure process. It is important to ensure that a trial is fair and the prosecution disclose the material that undermines their case. In line with the Attorney General's Guidance on Disclosure and the Magistrates Court Disclosure Review, if the prosecution cannot comply with these obligations then the case should not proceed.

Sentence

If you are convicted after trial, then it is very important to mitigate the sentence as far as possible to limit a period of disqualification.

Appeal

There is an automatic right of appeal against sentence and/or conviction from the Magistrates Court. This can include seeking the suspension of your disqualification until the appeal is heard, this can end up being many months in duration.