Failing To Provide a Specimen for Analysis

Blood

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.

Urine

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.

What is a Reasonable Medical Excuse?

The most common reasons for not being able to provide are as follows: –

• Lung conditions such as COPD and asthma.
• Being so intoxicated you cannot form a seal around the tube.
• Panic attacks.
• Needle phobia.

 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.