Failure to provide a specimen of breath, blood or urine

The police have the power to require the provision of a sample of breath, blood or urine during the course of an investigation into the commission of a drink or drug driving offence.

It is not unusual for such a requirement to be made of a number of persons if it is not immediately obvious who the driver was.

Failure includes a refusal.

The penalties are at least the same for providing positive samples and sometimes higher because a refusal combined with clearly drunken or impaired behaviour will be seen by the court as aggravating. It can demonstrate a lack of cooperation at its worst.

That said, there is a defence available and if a driver or suspected provides evidence of ‘a reasonable excuse’ it will be for the prosecution to disprove it. If the prosecution cannot satisfy the court that the ‘reasonable excuse’ is not a good one, for example that it is not genuine or does not amount in law to an excuse, you are entitled to be acquitted.

Specimens of Breath

Specimens of breath are taken in most drink drive cases, and sometimes urine and blood. Blood is taken in drug drive investigations. The same broad legal principles apply to them all. Over the years the courts have examined all kinds of reasons put forward as “reasonable excuses” for not providing a sample, and there is no definitive list. It would be impossible to draw up a list because circumstances vary so much from person to person. However, some reasons have been excluded and the two most common ones are “I wasn’t the driver and so I don’t have to”, and “I want to wait until I have spoken with my solicitor”.

Neither of these will help you. You may well not have been the driver but that doesn’t stop the police from asking for a sample if they are trying to find out who has committed an offence. Providing a positive sample will not lead to a charge unless there is evidence you were also a driver, and if you weren’t you have nothing to worry about. You can separately challenge any prosecution that you were driving. Refusing simply gives the police a strong charge of failure to provide and that will lead to a disqualification.

The police do want to gather evidence quickly and so they are not obliged to wait for your solicitor to arrive. Drivers who insist on waiting for a solicitor to get to the police station will not then have a reasonable excuse later on.

‘Reasonable excuses’ that do succeed are usually based on a physical or mental grounds and this applies to breath, blood and urine.

Some people are just unable to provide a sufficient flow or quantity of breath into the machine to register. Lung capacity may be an issue. If however, you can show that there was a genuine physical or mental reason you could not provide breath so that it registered, you may have a defence. You need to be aware that the police will ask if there are any medical or other reasons why breath cannot be provided, and if you have a reason you need to say so. The problem for most people is that they may well not know they have a condition, and are not used to the stress of the situation.

Examples may include:

• Asthma
• Chest Infection
• Long term smoker
• Small lung capacity
• Physical position when giving the specimen
• Anxiety and panic attacks, particularly if you are already on medication
• An inability to properly understand and follow instructions from the police officer. The police are not always as clear as they might be and you might have blown too hard because you thought you had to blow as hard as you could. This is a common problem, and the DVD recording will show exactly what the police said to you.

Most cases will require the support of medical evidence or perhaps the taking of a simulation test on a similar device.

Specimens of blood or urine

Specimens of blood or urine are taken in both drink and drug drive cases and the law is very similar for both.

In drink drive cases they are taken either when a testing machine is not functioning or when the driver has produced a sample that records a low level giving him the option of replacing it with blood or urine.

In drug drive cases the police do not take breath and so will ask for blood or urine after a roadside screening test has shown the presence of cannabis or cocaine, or if the police believe your driving was impaired by drugs, whether legal or illegal.

The police must ask if you have a preference for blood or urine but the officer will ultimately decide. Blood can only be taken by a medical practitioner and if one isn’t available it will leave little option but to take urine. Much depends initially on what the officer decides and why.

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
• An inability to urinate. The circumstances in which people find themselves are pressured and sometimes the bladder just won’t function. This is surprisingly common and might indicate the existence of ‘shy bladder’, a condition from which many people suffer to varying degrees. The added problem for many people is that they are given only an hour to produce urine and that time passes surprisingly quickly.

Expert medical evidence can be obtained to support any such ‘reasonable excuse’.

If you think there was a particular reason why you could not provide a sample of breath, blood or urine then get in touch straightaway because I will be able to help and advise on possible defences.