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Failing to Provide a Specimen is covered by Sections 6(6) and 7(6) of the Road Traffic Act 1988.
If a person fails the preliminary test or refuses to cooperate, they will be arrested and charged under Section 6 of the Road Traffic Act 1988. They will also be taken to a police station where they can expect police to make further requirements to provide a specimen, as part of what is the second stage of the police investigation, under section 7 of the Road Traffic Act.
Only a police constable in uniform can require a person to submit to a preliminary test if they reasonably suspect that the driver is or has been driving, attempting to drive or in charge of a vehicle in one of the following scenarios:
For alcohol offences this preliminary test will normally mean being required to provide a breath by means of a handheld electronic device or being required to provide a sample of sweat or saliva to test for drugs. In certain circumstances this may involve other investigations, such as being required to walk in a straight line to assess impairment.
If you have any queries about failing to provide a preliminary specimen, call us today.
S.7 (1) Road Traffic Act states that during an investigation into whether a person has committed an offence under s.3 (a) s.4 or s.5 of the Act, a Constable may require him either to provide two specimens of breath for analysis or to provide a specimen of blood or urine for a laboratory test
If you are charged, then this is a serious offence which carries the risk of a minimum twelve-month disqualification together with means tested fines and costs and potentially community orders. However, the starting point for sentencing is usually that you have refused or failed to provide so you are likely to face a minimum seventeen-month disqualification with community orders and means tested fines and costs. However, if you are involved in an accident or are significantly impaired then the starting point for sentencing is 12 weeks custody.
If you have been arrested and taken to a police station on suspicion of driving over the specified limit in alcohol or being drunk in charge of a vehicle, then the police will require two evidential specimens of breath for analysis by means of an approved device.
The common evidential breath testing machines used by the police force in the UK are the Lion Intoximeter EC/IR, the Lion Intoxilyzer and the Camic Datamaster.
The officers will run through a series of questions with you prior to making the requirement for breath which are found on the MGDDA Forms .
If you are deemed ready to take an evidential alcohol breath test the police officer should state, the following requirement:
“I require you to provide two specimens of breath for analysis by means of an approved device. The specimen with the lower proportion of alcohol in your breath may be used as evidence and the other will be disregarded. I warn you that failure to provide either of these specimens will render you liable to prosecution. Do you agree to provide two specimens of breath for analysis?”
You must agree to take the evidential alcohol breath test. If you refuse to do you should be issued a final warning:
“I warn you again that failure to provide either of these specimens will render you liable to prosecution. Do you now agree to provide two specimens of breath for analysis?” **
If you refuse to provide the police officer should ask if there are any medical reasons why you cannot or should not provide two specimens of breath as required.
If you agree to provide two specimens for analysis, the evidential alcohol breath testing procedure will commence. You should be instructed on how to provide the two samples of breath required. If you cannot provide two samples of breath as required and as instructed by the police officer, you should be asked once again if there are any medical reasons why you cannot provide the samples of breath as required. If you raise a medical issue, it is at the officer’s discretion to ask for an alternate specimen of blood or urine. If the officer does not accept your medical excuse this does not prevent you from raising a defence of reasonable medical excuse.
If you try to provide but simply cannot produce enough breath, then if you fail to produce either specimen you are guilty of an offence under s.7(6) of the Road Traffic Act 1988. The police should retain the mouth pieces from any attempt so these can be inspected for faults or blockages.
If you have been charged with failing to provide a specimen of breath for analysis, call us today. We can assess whether the correct procedures have been followed when requiring the specimen or if you have a potential reasonable medical excuse for not providing.
In relation to alcohol related offences when the Officers move onto the blood procedure, it will be because there is no breath test machine available or because one of the criteria under s.7(3) RTA1988 have been met or because the specimens provided are too far apart to be accurate. In which case the Officers will require that person to provide blood and warn them that failure to do so will render that person liable to prosecution. If you have failed a preliminary swab the police will move straight to the request for a specimen of blood.
If the request is made at a police station then the officers will run through a series of questions with you prior to making the requirement for blood which are found on the MGDDB Forms .
If the request is made at the hospital then the officer will use the MGDDC Forms .
The provision of taking blood is dealt with under s.15 Road Traffic Offenders Act 1988. The blood specimen is taken by a healthcare professional. One specimen is taken and is split into two parts, one part being kept by the Police and sent for analysis, and one part being given to the defendant.
When the officer requires somebody to provide blood, they must ask them if there are any medical reasons why blood cannot be taken should not be required.
“I will require you to provide me with a specimen of blood or urine which, in the case of blood, will be taken by a doctor or health care professional. It is for me to decide which it will be unless a doctor or health care professional is of the opinion that for medical reasons a specimen of blood cannot or should not be taken, in which case it will be of urine. You may inform the doctor or health care professional of medical reasons why a specimen of blood cannot be taken by them, but the matter will be for the doctor or health care professional to determine. You will be supplied with part of the specimen if you so require. The other part will be sent to a forensic laboratory for analysis. I warn you that failure to provide a specimen will render you liable to prosecution. Before I decide whether the specimen shall be of blood or urine, are there any medical or other reasons why a specimen of blood cannot or should not be taken by a doctor or health care professional?”
s.7 (4A) RTA 1988 says there shall be no requirement for the defendant to provide blood if the healthcare practitioner raises an objection. Therefore, if the officer does not ask you if there is a medical reason for not providing a specimen this will lead to an acquittal.
If you raise a medical reason that a specimen of blood should not be taken then the Constable must consider whether the reason is capable of being a medical excuse for not providing. If there is any doubt, he should seek the opinion of a medical practitioner.
In these circumstances it is not for the Constable to substitute his own opinion for that of the medical practitioner, unless the driver’s objection is obviously frivolous; and the Constable should delay requiring blood specimens after medical practitioner has expressed an opinion.
If you raised a medical condition and the police constable did not have you examined by a healthcare practitioner, then that may well be a procedural error. Call us today so we can assess your case.
Even if the officer requested that you were examined by the healthcare professional and they have dismissed your medical reason, it does not mean that you cannot raise a reasonable medical excuse for not providing.
If a healthcare practitioner is unavailable, then the constable then the officer can elect to require an evidential specimen of urine. This can be taken by a police officer and does not require a healthcare professional to conduct the procedure.
Again, the officer must warn you that a failure to provide will render you liable to prosecution: –
“I have decided the specimen shall be of urine.
I therefore require you to provide two specimens of urine within one hour for
(i) alcohol analysis *(ii) drug analysis *(iii) alcohol and drug analysis.
The first of those specimens will be discarded and the second used for analysis. Failure to provide either of the specimens will render you liable to prosecution. Do you agree to provide the specimens?”
Under section 7(5) RTA 1988 you must provide a specimen of urine within one hour of a first disregarded specimen, i.e. you must provide one specimen of urine, which is disregarded, and then provide a second specimen within an hour of the provision of the first.
There is no requirement for the officer to ask you whether there are any medical reasons for being unable to provide urine. If you raise a medical reason for not being able to provide there is no requirement for the constable to seek the advice of a healthcare practitioner.
If you have a genuine physical inability to provide a second specimen of urine within an hour of the successful provision of a first specimen this can in appropriate circumstances amount to a reasonable excuse.
This is an extremely complex area of law. Call one of our experts today if you have been charged with failing to provide an evidential specimen.
The most common reasons for not being able to provide are as follows: –
A reasonable medical excuse, however, must be held to be either a physical or mental incapability for failing to provide a specimen. Trying your best to provide will generally not amount to a defence.
An example of a physical incapability would be when someone was so mentally disabled that he does not understand the procedures or alternatively if a language barrier has meant a person is unable to comprehend the instructions given to him. It could be a reasonable excuse if the defendant is so intoxicated that they are simply unable to form a seal around the tube with their lips or unable to expel enough air into the machine However, it is not a reasonable excuse if you are too drunk to understand the procedure.
If you have a medical condition, the tests that must be applied to establish a reasonable excuse were identified in the case of DPP –v- Crofton, when it was held that the following matters had to be considered: –
1) The need for evidence of a physical or mental incapability.
2) That medical evidence would normally be required to support such a claim.
3) The necessary causative link between the physical or mental conditions and the failure to provide a specimen.
The third criteria here is the most important. For example, it is very easy to establish that somebody had asthma, which is of course a physical incapability. Medical evidence would be produced to prove that the person had asthma, but it would be incredibly difficult to establish, without a very strong report from a doctor or respiratory expert, that the person’s asthma that has caused them to fail to provide the specimen. The expert evidence is required to prove the causative link.
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Graham, I would just like to put in writing how pleased we are with your legal services. The preparations for the defence have been very thorough and detailed and we can't fault that in any way. I was very impressed with the level and volume of detailed case law that you were able to bring to bear, including the changes prepared to mitigate the very late evidence that the CPS tried to introduce. I would therefore just like to convey may heartfelt thanks for all of your efforts along the way keeping us informed on progress and which eventually lead to the CPS offering no further evidence and the case being dropped Without your expert help it could have been a very different outcome, which would have been a travesty of justice as there was never any intention to drive I would also like to express our thanks to Joseph Byrne, the Barrister you instructed to represent Chris at the hearing. He was extremely well prepared and VERY knowledgeable on our case and the points of Law surrounding it. He ran rings around the CPS Barrister who appeared to be very poorly prepared. Once again to you and your team and to Joesph Byrne, thank you.
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Two Drink Drive Allegations in 2 years - Both defended successfully. First offence I registered 153 mg's and faced a sentencing guideline of 12 weeks imprisonment, disqualification, fines etc. as it is over 4 times the limit - I received; 100 Hrs community service, £85 Costs ( The minimum the CPS can ask for!), £60 Victim surcharge, no points and no disqualification. Second offence; a vehicle I & 9 others have access to was involved in a damage only accident. Police came to my house & I blew 149 which is over four times the limit, but I had been drinking all day out on foot and indoors prior to my arrest as it was new years eve. The case against me was immediately withdrawn in court, in that it failed the Crown Prosecution Service code for prosecution. Without your legal advice I would have been hung out to dry on both occasions. Thank you to everyone who helped me.
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