Failing To Provide A Specimen

 

Our Guide to Defending Drink Driving Cases.

The information below is intended as a general guide to some common issues which arise drink-driving and failure to provide specimen cases and ever the ever increasing complexity in defending these cases, which is why having a specialist drink driving barrister advising, assisting and representing you from the very beginning is absolutely crucial and essential.

Preliminary testing – failing to provide a breath specimen of the roadside.

If a police officer reasonably suspects that a person has been driving, attempting to drive or is in charge of a motor vehicle whilst having alcohol or a drug in his body the driver is obliged to provide a roadside breath specimen when requested. This is known as a “Preliminary Impairment Roadside Test”.

If the police officer suspects drugs have been taken a preliminary drug test procedure is carried out whereby a specimen of sweat or saliva is obtained from the driver and is then used to indicate whether the person has a taken a drug through means of a drug test device.

If the driver fails to cooperate a police officer can arrest a person who can be detained at the police station. However a driver cannot be arrested if he is at a hospital as a patient, Therefore hospital patients are recorded protection within the law.

What happens at the police station? The MGDD/A procedure

If arrested the suspect is taken to the police station where a police officer, usually the custody sergeant, will conduct the drink driving breath test procedure and will proceed to run through a booklet called the MGDDA. This booklet contains guidance and is meant to cover the entire procedure for taking a specimen with drink-driving is suspected.

We rigorously examine the MGDDA in all drink-driving cases to see whether the officer conducting the procedure properly carried out the procedure

The reasonable excuse defence.

If the driver has a reasonable excuse, this is a defence in law. It is for the prosecution to negative it.

A medical condition, such as breathing difficulties for a chest complaint can amount to reasonable excuse for failing to cooperate with the police officer undertaking the test.

In order for a medical condition to succeed as a reasonable excuse, it has to be shown that the failure to provide the specimen is due to the driver being physically or mentally unable to provide it or that in providing a specimen would amount to a substantial risk to the driver’s health.

Failing to follow guidelines.

Failing to follow the manufacturers guidelines when administering a preliminary breath can mean that the roadside procedure is unlawful and that no offence is therefore committed.

Discretion to exclude.

In cases where evidence of the road side test has been unlawfully or in illegally obtained, the court has a discretion to exclude evidence.

Failing to provide a specimen at the police station.

Where there has been a positive roadside breath test for alcohol, there is a legal requirement to provide two specimens of breath at the police station, unless one of the established exceptions apply.

Failing to provide a breath specimen.

A failure to give a warning that person is liable to prosecution to provide a specimen what with any of the appropriate statutory procedures will result in the evidence of the specimen being found inadmissible by the court.

It is also a requirement in law at the person being given the warning understands the warning.

Protection for hospital patients.

A person suspected of drink-driving is a hospital as a patient can refuse to provide a specimen if the medical practitioner media “in charge” of the patient is notified of the requirement to provide a specimen and declares that it is not appropriate to do so.

Whether a person fails to provide a specimen is a matter for the court to decide. There are some important consideration:

  • How the person being asked to provide a specimen refused.
  • Even without medical evidence the magistrates can take into account shock with a combination of inebriation if it rendered a defendant physically incapable of providing a reasonable excuse.
  • Incomplete or flawed specimens.

Punishment for failing to provide a breath specimen.

Where a defendant was driving or attempting to drive, the court can impose a prison sentence of six months and/or a fine up to level five on the standard scale.

Disqualification and endorsements are obligatatory in the absence of special reasons (see above).

The offence carries between three and 11 points.
If the defendant was not driving or attempting to drive, the penalty is three months imprisonment and/or finance level for stop

In those circumstances the disqualification is discretionary, but endorsement with 10 penalty points in the absense of special reasons.

The Magistrate’s Court sentencing guidelines explain offence seriousness with reference to the nature of the failure and aggravating and mitigating features.

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