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  • Failing to provide a specimen for analysis

    Failing to provide a specimen of breath for analysis is one of the most common offences apart from drink driving itself. Occasionally, people do actually refuse to provide a specimen; however, experience tells us that in most cases the people we have met have tried their best to provide but have been unable to blow for as long as the police officer wants them to. Police officers are rarely sympathetic and will almost always charge somebody rather than moving to another type of test.

    What is failing to provide?

    The police can require you to provide a specimen of breath for analysis when they are engaged in a genuine investigation into a drink driving offence. Deliberately failing or refusing to provide a specimen of breath is a criminal offence.

    The police will normally require a specimen of breath but if there is a problem with the Intoximeter or you cannot blow into the machine for some reason they can move onto demanding you provide specimens of blood or urine instead.

    If you really cannot provide breath then the police should ask you to provide blood or urine. However, more often than not the police officer will simply put any failure down to you deliberately failing to provide and will charge you with a criminal offence.

    Are there any defences to failing to provide?

    Yes. Depending on your circumstances there are a number of defences to failing to provide.

    The three main defences seek to explain why you failed to provide and can be things such as:

    1. A medical excuse;
    2. Failure to understand requirement or police officer’s instructions; and
    3. Defective intoximeter machine

    Medical excuses can be anything that affects your ability to blow into the machine at the required rate and for the required time – nb the time taken will vary from person to person depending on your lung capacity. Medical excuses have also been held to include situations where a person is so drunk that she cannot physically provide!

    Failing to understand the police officer will also be a defence. For example, if you cannot understand that you are required to provide or the instructions about how to blow into the machine you will have a defence. Failing to understand will usually be because the police officer has not explained himself properly.

    The evidential breath machines used in London were all made by Intoximeters Limited in 2004 and many are showing their age. We regularly find situations where clients have blown into the machines for very long periods of time but have not provided a specimen of breath. This is often due to defective infrared sensors inside the machines that fail to detect when the deep-lung air that the Intoximeter requires to perform its analysis.

    In some situations, it may also be possible to argue that the police officer had no power to require you to provide a specimen of breath in the first place. This will usually be because we say that the police officer was not conducting a [i[genuine[/i] investigation, for example because there is evidence available to the police that you were not driving or that the incident that brought you to the police officer’s attention occurred on private land where it is not possible to commit a drink driving offence.

    Sentencing failing to provide cases

    Should you plead guilty or be convicted the court will have to pass sentence. Like drink driving, the court is required to disqualify you from driving for at least 12-months unless there is a special reason not to ban you. The sentences in failing to provide cases are more severe than in drink driving cases.

    If the court feels that you deliberately failed or refused but that you had an excuse that did not amount to a defence then you should expect a driving ban of between 12 and 15 months as well as a fine of 150% of your weekly income.

    If the court decides there was no excuse for your failure to provide then you should expect a ban of between 17 and 28 months plus a Community Order, which is likely to include unpaid work or a curfew monitored by an electronic tag.

    Finally, if the court feels that you deliberately failed or refused to provide and there was evidence of serious impairment then the starting point is 12-weeks imprisonment and your driving ban will be between 29 and 36 months.

    If there are aggravating features then the sentence can be much higher than those outlined above.

    What can a solicitor do for me if I plead guilty?

    Before you plead guilty, we will always examine the evidence and highlight any flaws in the prosecution case or potential defences available to you. We won’t pressure you to take these but if you decide to plead guilty you will always do so after receiving the best possible advice so that you can make an informed decision.

    If you intend to plead guilty to failing to provide a specimen you can hire one of our expert mitigators to come to court to speak on your behalf. We will help you prepare for the hearing and gather evidence that will present you in the best possible light before the court. At court we will lessen the impact of the prosecution case by putting forward your version of events. Done well this will lead to a reduction in your sentence. We will also put forward personal mitigation – that is information about you that leads to the court to agree you deserve a less harsh sentence than somebody else who has committed the same offence. This may be anything to a recent traumatic event to showing the court what a responsible person you are – we’ve yet to have a case where there has been nothing good to say about a client that hasn’t resulted in a reduction in his or her sentence.

    The aim of our mitigation is to reduce your sentence to the minimum allowed by law and the sentencing guidelines.

    Whether you want to plead guilty, not guilty or you just need some help unravelling the case against you, please do not hesitate to contact Nick Diable on 01869 866 490 today or send us a message via our contact page.