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Failure to provide a specimen for analysis - what does it mean and what to expect.

12 March 2022
Alcohol & Drugs

What is a reasonable excuse for failure to provide a specimen?

A reasonable excuse can often be a medical condition but may include the mental state suffered by someone after inappropriate behaviour by police officers. It could even include a psychological condition, such as a phobia of hypodermic needles, although this has to be more than just not liking needles.

It is necessary to prove the existence of a reasonable excuse, by either producing expert evidence, or bringing alternative evidence of what happened at the police station.

Importantly, the person who has failed to provide the sample usually needs to have told the police that they have a condition, phobia, religious grounds, or any other potentially reasonable excuse, at the police station when they are asked to provide the specimen.

The necessity of being warned of prosecution

In a case of failing to provide a specimen for analysis, an officer must have stated to the detained person that failure to provide a sample could result in a prosecution for a criminal offence. Failure to give this warning could mean that the prosecution can be challenged.

Must a person have been driving to be guilty of failure to provide a specimen?

In cases of failing to provide a specimen for analysis, a police officer must only suspect that a person has been driving the vehicle whilst over the limit in order to request a specimen.

Do I have a right to a Lawyer at the police station if I'm arrested for drink driving?

Although there is a right to speak to a solicitor on the phone while in custody, the law says that this does not take precedence over the necessity for the breath test to take place in time to give a reading before the blood alcohol level drops in the arrested person.

The higher courts have been dismissive of most but not all attempts to show that a person has who has been denied legal advice before the breath test procedure is entitled to an acquittal. It is usually only in more extreme cases, where bad faith on the part of the officers can be shown, or where there are other severe lapses in officers' conduct, that the absence of a lawyer before the procedure might become significant.

What is the sentence for failure to provide a specimen?

The sentencing guidelines for failing to provide a specimen for analysis are similar to those for Driving with Excess Alcohol. Bans of upwards of 2 years are commonplace.

A prison sentence has to be considered by the magistrates for a second offence within ten years, although not necessarily imposed. The first offence does not need to be for Failure to Provide. It could be another drink-related driving offence.

An outright refusal can be considered at the more serious end, and courts might consider a community order or custody.

Is there any way to avoid a ban if I plead guilty to failure to provide a specimen?

In failing to provide a specimen for analysis cases the law of Special Reasons can sometimes be applied to help avoid a ban.

If drinks have been spiked/laced, Special Reasons arguments might be applicable, which could avoid a ban, but only where it is the alcohol itself that has prevented you from giving the sample. There are certain other situations where special reasons may be available.

Further note

With offences involving failure to provide a specimen, the law relating to whether a failure is justifiable can be difficult. If you are in any doubt as to whether you are guilty of the above or any other offence, we recommend obtaining expert legal advice.

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