Failing to provide a specimen - drink driving

The Road Traffic Act 1988 gives the police authority to request a preliminary breath test (Section 6A) or specimen for analysis (Section 7) if they have reasonable suspicion to suspect that you are driving under the influence of drinks or drugs. Such a test could be requested where the police have suspicions that you are under the influence of drugs or alcohol, you have committed a road traffic offence or there has been an accident.

The breath test could be done at the roadside, or you may be taken to a police station or hospital in order to give a blood or urine sample. If you are requested to provide a preliminary breath test at the roadside and it is positive for drugs or alcohol, the police can then request an evidential specimen. You do not have a choice about which type of specimen you provide and any refusal to provide a specific sample – even if volunteering to provide an alternative – can be seen as a refusal to provide a specimen.

If you have been admitted to hospital – for example, after an accident – the police can still request an evidential specimen to be provided, although in these circumstances a medical practitioner may raise objections to a specimen being taken on medical grounds.

The need to provide a specimen for analysis is not limited solely to the driver of a vehicle. For example, if the police attend a road traffic collision and have a reasonable suspicion that those involved are not being forthcoming as to who was driving the vehicles at the time of the collision, they can request all those present to provide a specimen for analysis. If the driver’s identity is unknown, Section 6E(1) of the Road Traffic Act 1988 gives police the power to gain entry to any place using reasonable force if necessary in order to impose a requirement to provide a preliminary breath test if the following conditions of Section 6(5) of the Road Traffic Act 1988 are satisfied:

1. There was a road traffic accident on a road or public place; and
2. The officer reasonably believes that a person had been driving, attempting to drive or in charge of a vehicle involved in the road traffic accident.

Moreover, Section (1)(c)(iia) of the Police and Criminal Evidence Act (PACE) 1984 grants a police officer the power to enter any premises to arrest a person under Section 4 (driving, attempting to drive or in charge when under the influence of drink or drugs) or Section 163 (failing to stop when required to do so by a constable in uniform) of the Road Traffic Act 1988.

Refusal to provide a specimen without a reasonable excuse is a criminal offence. Examples of a reasonable excuse might include a medical condition or similar that prevents you from adequately fulfilling the request of the police to provide a sample as requested.  Examples of medical reasons for not providing a specimen include, but are not limited to:

• Severe asthma
• Long COVID
• A diagnosed needle phobia.

Any medical condition would need to be confirmed by a medical expert, usually in the form of a medical report. Reasons which are unlikely to be seen as a reasonable excuse for refusing to provide a specimen include:

• Impairment as a result of drink or drugs
• Refusal to provide a specimen until speaking with a solicitor
• A dislike of needles without a diagnosed phobia.

What are the procedures that must be followed by the police?

There are certain procedures that must be followed by the police. If any part of the police’s stop, arrest or the test itself was unlawful, then this could impact your case. If you are taken to the police station to provide either a breath, blood or urine sample, the police have to complete a document called a MGDDA form. This sets out the procedure they must follow and a series of questions that you must be asked. In addition, you should be issued with a statutory warning before you provide a sample, and it must be explained to you that any failure to provide a sample is a criminal offence and that you could be charged.

Penalties for failing to provide a specimen when suspected of driving or attempting to drive a vehicle are severe and can result in a custodial sentence of up to six months and a period of disqualification of up to three years. Compared with failing to provide a specimen when in charge of a vehicle, rather than driving it, the maximum sentence is a custodial sentence of three months. But the court also has the discretion to disqualify from driving for a period of up to 12 months, although they can impose 10 penalty points as an alternative to disqualification.

If you have received a disqualification of longer than 56 days in the preceding three years, the minimum period of disqualification the court must impose is two years. If you have a previous period of disqualification for a drink or drug driving related offence in the preceding 10 years, then the court must impose a period of disqualification for a minimum of three years.

If you plead guilty or are convicted of a drink drive related offence as detailed above, the court may offer you the Drink Drive Rehabilitation (DRR) course. This is a course you will have to pay for, which, if completed within the timescales provided by the court, can reduce the period of disqualification by a maximum of 25%. The course is only offered at court and if you refuse it at that point, you cannot request it at a later date. However, there is a minimum period of disqualification of 12 months before you can be eligible for this course. As an example of how this might work, let’s consider you have received a disqualification of 12 months and you choose to pay to attend the course; after successful completion within the timescales the court indicated, your disqualification would be reduced by 12 weeks.

It may also be pertinent to look at whether there was a ‘special reason’ that led to you failing to provide a specimen. A ‘special reason’ is an exceptional circumstance that led to the offence being committed, and there are certain criteria which must be met if the court is to accept these; they include:

• An extenuating or mitigating circumstance
• A reason that does not amount to a defence in law to the offence
• A reason that must be directly connected to the commission of the offence
• Something the court ought properly to take into consideration when imposing its sentence.

If all of the conditions above are satisfied in relation to the reason put forward, the court will then have the discretion not to endorse a person’s licence with penalty points or to disqualify a person for a shorter period of time than set out in the sentencing guidelines.

How Birkett Long can help

In the event you find yourself in trouble with the police it is imperative that you seek specialist legal advice as there is a lot that can be done to help you.

We will present a carefully planned package of mitigation in order to give you the best possible outcome in the circumstances. Even where a mandatory disqualification is inevitable, we can often achieve a reduction in length.

For any further advice on any of the above, please call Zoe Hosking on 01206 217323 or email [email protected]