During the year I have successfully defended a number of drivers charged with failing to provide urine samples during investigations into drink and drug drive offences.
Some have been straightforward but some have required very careful analysis of the police evidence to reveal procedural defects making the laboratory results inadmissible.
The legislation allows police officers to make what is known as a “requirement” for the provision of urine samples. Police can require urine in exactly the same way as they require either blood or urine. Urine requirements are not that common because police prefer to take breath or blood. Breath can only be asked for at a police station. If the motorist is at hospital or if a breath device isn’t working, police will go for either blood or urine.
The requirement is for two separate samples of urine within an hour of the making of the requirement. The first sample is thrown away and the second sent for analysis.
Drivers have a defence if they show they had a reasonable excuse for not providing either of those samples, and in the straightforward cases the drivers were unable to urinate despite drinking quantities of water. In each case the court accepted that they had drunk water and tried to urinate, but couldn’t.
Three quite recent cases were very different and were much more complicated. In each case a thorough analysis of the documentary and video evidence revealed that police had simply got the procedure wrong. It wasn’t possible to tell this from the written statements and the errors only emerged after comparing the times of certain events on the police officer’s body worn cameras (they have a running clock) with the times and events set out in statements. They didn’t match up.
This is a case in which the driver had been involved in a road accident and had gone to hospital for a check. Police accompanied him from the scene of the accident. The various reasons they couldn’t take blood and opted for urine. On arrival at the hospital the motorist was allowed to go straight to the toilet to urinate. The police then obtain consent from the treating doctor to take your in and made the requirement for the provision of two samples within the hour. According to the written statements the motorist then provided two samples and the second was sent away for analysis. The laboratory result showed he was over the drink drive limit.
The police officer’s statements said that after arriving at the hospital they made the requirement which was complied with. When the body camera footage was analysed it revealed that the officers did indeed make a requirement but treated the first visit to the toilet for the requirement was made as the first sample. The second sample was provided after the requirement, and that was sent away for analysis. The error the officers made was not taking two separate samples after the requirement itself was made. In error they treated the first sample is having been provided during the first visit to the toilet. It was impossible to tell this from reading the statements. The prosecution had to accept a serious procedural deficiency and the drink drive charge was withdrawn.
In this case there had also been a road traffic accident and the driver taken to hospital as a precaution. No one was injured. Police required urine because there was no one available to take blood.
As with case 1 the driver was allowed to go to the toilet straight after arrival. He had no idea he was going to be asked to urinate again.
The police officers trying to take urine made detailed written statements setting out the times they checked with the doctor, made the requirement, and set out in detail what they said to the driver. The legislation imposes obligation son police to carefully explain to drivers what is going on and why.
When the body cam footage was compared with the written statements there were significant time discrepancies.
When the words used by police officers as recorded on their cameras were compared with the wording in the statements it was apparent the written versions were incorrect. The driver had been given incorrect information about the procedure, the statutory warning had not been properly explained, and accompanying paperwork had been altered after completion in an attempt to make the procedure appear compliant with the Road Traffic Act. Someone had plainly spotted errors and appeared to try and make good the situation.
Detailed submissions to the Crown Prosecution Service on all these points resulted in the case being withdrawn.
When taking urine, a motorist must provide two separate samples. The reason is that the first may have been in the body for some time and cannot be relied upon. The second sample will contain a much more accurate measurement of alcohol in the body, and that one is sent for analysis.
In this case police officers served statements to say they had taken two samples and everything looked to be in order. However, enquiries made and an analysis of the body cameras showed that in fact police had only taken one sample and had split it into two. This was completely wrong but it would never have been known had enquiries not been made. When the Crown Prosecution Service realised the true position, the prosecution was withdrawn at the first court hearing.
These case studies reveal that in certain circumstances police continue to make mistakes and it was worth the time money and effort to expose the true position.
The outcomes all relied upon me knowing exactly what to check for