The knock-out blow: Defences against failing to provide a specimen of breath for analysis

Following recent news that tougher penalties are coming for drink drivers, many people have asked a good question: what should you do if you are stopped by the police for suspected drink driving?

Should you find yourself in a police station being asked to provide a sample for analysis, the best thing you can do is comply.

However, if you do not provide a sample, you may be accused of failing to provide a specimen of breath for analysis. If you wish to challenge an assumption that you failed, (rather than refused) to provide a sample, then your first step should be to obtain professional legal advice.

As a rough guide, here are some examples of what might (as well as what definitely won’t) constitute a defence.

What does the law say?

Anyone suspected of a drink driving offence can be required to provide a specimen of breath, or failing that blood or urine. This can arise whether or not they have been arrested, even if they were arrested and it was unlawful.

What is NOT a defence?

  •  Being detained under the Mental Health Act (as long as the driver is capable of understanding the breathalyser procedure).
  •  Maintaining silence throughout your time at a police station: while those who are arrested have a right to silence, it does not extend to this procedure.
  •  Insisting on seeing a solicitor before providing a sample. This is for the practical reason that this could be used as a delaying tactic – a suspect might hope that they will sober up while waiting for the solicitor to get to the police station.
  •  Only providing one specimen: suspects are required to provide two samples of breath for analysis, and the police will rely on the lower of the two (an exception would be if the single sample provided was below the limit – this is powerful mitigation).
  •  Assault or mistreatment by officers at the roadside (however you are treated, you are still obliged to provide a sample at the police station).
  •  Refusal to provide a sample on religious grounds (in the vast majority of cases).

What MIGHT BE a defence?

A defendant may have a defence if they have a ‘reasonable excuse’ for failing to provide a specimen to the police. The question of what is a reasonable excuse is generally what troubles the courts the most often.

The following circumstances are capable of amounting to a reasonable excuse, and therefore a defence. This is not an exhaustive list – each case is worth thinking about carefully.

  •  If you were not driving, or had no intention of driving at all. In this case, the prosecution would have to prove that the police officer(s) reasonably believed that you were about to drive. These sorts of cases are all different, and legal advice should be taken before deciding whether to plead guilty or not guilty.
  •  If the breath analysis machine was not working properly – the presumption is that the machines ARE working properly, so legal advice and possibly an expert’s report are important if this is excuse is to be argued as a defence.
  •  If a police officer has been rather too hasty in recording a refusal to provide a sample for analysis – you initially refused to provide a sample, but changed your mind seconds or minutes later. This is surprisingly common, and in a case like this, a court is likely to say that there was no refusal. Again, this will depend on the circumstances and so legal advice should be taken.
  •  If you refused to provide a sample of blood on health grounds, or because of a fear of needles. While these reasons may be used as a defence, they should be raised at the police station, so that officers have an opportunity to arrange alternative tests. Generally speaking, some medical evidence would have to be called by the defence in order to support argument.
  •  If you insist on reading the consent form provided by the police before giving a sample, you will probably have a reasonable excuse for failing to provide a sample.
  •  If you are physically unable to provide a breath sample – as long as this is supported by medical evidence. This can be hard to establish, since the machines are actually very easy to blow into, and do not require a huge amount of air. For example, even having only one lung, or asthma, is not enough to establish a defence. However, an asthma attack might, as might other lung complaints or panic attacks, so long as in each case genuine attempts to provide a specimen were made. Legal advice should be taken about whether individual circumstances are likely to be viewed as reasonable by the court.
  •  If the police refuse to try to arrange telephone contact with a solicitor before a sample is taken. Of course, if the solicitor is not immediately available, the suspect can be required to provide a sample anyway. This is an argument that has been before the courts many times, and it is therefore complicated. Legal advice should always be taken if you are taken to court in these circumstances.

For more information on all motoring matters, including specialist legal advice on challenging an accusation of failing to provide a specimen of breath for analysis, email, or call 0121 201 3765.

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