The offence of failure to provide a specimen for analysis is one that carries a mandatory minimum driving ban of 12 months as well as a fine, a community order or even a prison sentence. Furthermore, if you are convicted of the offence, you will be classed by the DVLA as a “high-risk offender” and will have to go through a medical examination before you can drive again, this is mandatory even after your period of disqualification has expired.
Can I defend the charge?
Our Director, John Ruane, has dealt with countless failure to provide allegations during his time as a solicitor. Numerous defences can be advanced when you have been charged with the offence.
Reasonable Excuse
This is the most common defence and forms the basis for the majority of failure to provide defences. If you have been charged with the offence, then it is because the police formed the opinion that you have failed to provide without having a “reasonable excuse”.
Examples of reasonable excuses vary depending on what type of sample is required from the defendant. For example, a common reasonable excuse for failure to provide a breath sample will be that the defendant suffered from a respiratory issue which prevented them from providing an adequate sample. If the required sample was blood then often a “needle phobia” is advanced, it is worth noting that a mere assertion of “needle phobia” is unlikely to be sufficient and that this defence must always be further evidenced by way of expert evidence/evidence of a needle phobia diagnosis.
If the Crown are unable to disprove the evidence presented by the defence that there was a reasonable excuse, then the defendant should be acquitted.
Procedure
As is the case with drink driving cases, the police are required to follow the procedure before requiring the specimen from the defendant correctly. Most importantly, they are required to inform the suspect that a failure to provide may render them liable to prosecution. If the Crown cannot prove that the warning was read, then the case should result in an acquittal.
Officer’s obligations
The police are required to go beyond simply reading the warning to the suspect, and they must react accordingly if the suspect raises a medical reason for their failure to provide a specimen. Many cases in which someone informs the police of a medical reason for their failure result in the suspect being charged without the officer carrying out any further investigation of the matter.
The correct process is that the officer should ask probing questions on the medical reason raised by the suspect, and, if they are still unsure, they should arrange for the suspect to be assessed by a health care professional before deciding on how to proceed with the matter. If the health care professional is of the view that the suspect’s medical issue is capable of being a reasonable excuse, then it may be more appropriate for the police to require an alternative specimen of blood or urine.
In many cases, police unilaterally dismiss the medical reason raised by the suspect and decide to charge them without first consulting a health care professional. In such circumstances, an argument can be advanced to exclude the requirement, which, if successful, could result in an acquittal.
Am I entitled to speak to a solicitor?
This question comes up a lot in failure to provide cases. The short answer is: “no”, there is no direct right to legal advice before providing a specimen. The issue is slightly more nuanced, however, and there is an argument to suggest that the suspect should be allowed to discuss the matter with a solicitor providing the consultation does not cause any material delay to the procedure. However, this does not necessarily mean that preventing the suspect from obtaining legal advice before the provision of the sample is capable of resulting in an acquittal. The Courts are clear that each case should be assessed on its own merit, and this particular argument is rarely successful in practice.
Conclusion
If you have been charged with this offence, you should not hesitate to seek legal advice. Please, therefore, do not hesitate to call us if you have found yourself in this position and we will be happy to offer a free consultation and answer any questions you may have.
Driving Offences