Police Procedure: Failing/Refusing to Provide a Specimen

Drink Driving Police Procedure - Failing to Provide a Specimen for analysis

Fail to Provide Breath, Blood or Urine Specimen for Analysis & Failing to Co-operate at the Roadside



Failure to provide must always be 'without reasonable excuse'

Failing to provide a specimen for analysis or failing to co-operate with a preliminary roadside breath test also includes refusing to provide a specimen for analysis or refusing to co-operate with a preliminary roadside breath test. If a person refuses to provide a specimen or refuses to co-operate with a roadside breath test they will have subsequently 'failed' to do so, they will be guilty of an offence and they will be charged accordingly.

It is not intended for anyone who genuinely cannot provide a breath, blood or urine specimen to be prosecuted for failing to do so. If for example, there are genuine medical reasons for not providing a specific type of specimen or co-operating with a preliminary roadside breath test then no charges for failing to co-operate or failing to provide should be brought.

Where a reasonable excuse exists for not providing a specific type of specimen (blood, breath or urine), an alternative type of specimen will always be required instead.


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Failing to Co-operate with Roadside Breath Test

Failing to co-operate with a preliminary roadside breath test is a criminal offence, this also includes refusing to co-operate.

s. 6 ss (6) of The Road Traffic Act 1988 [1] states:

(6) A person commits an offence if without reasonable excuse he fails to co-operate with a preliminary test in pursuance of a requirement imposed under this section.

A preliminary breath specimen must always be provided in a way that the police officer instructs and in order for the breath analysis to be completed by the breath testing device. In the absence of any medical reasons (or reasonable excuse) for not providing a breath specimen as instructed and required, a person who (perhaps half heartedly) attempts to provide a specimen of breath and fails to do so, will be guilty of an offence. In any case, a person who fails to co-operate with a preliminary roadside breath test will be arrested and be required to provide an evidential specimen for analysis.

s. 11 ss (3) of The Road Traffic Act 1988 [1] states:

(3) A person does not co-operate with a preliminary test or provide a specimen of breath for analysis unless his co-operation or the specimen—

  1. is sufficient to enable the test or the analysis to be carried out, and
  2. is provided in such a way as to enable the objective of the test or analysis to be satisfactorily achieved.

Failing to Provide an Evidential Specimen

s. 7 ss (6) of The Road Traffic Act 1988 [1] states:

(6) A person who, without reasonable excuse, fails to provide [an evidential] specimen when required to do so in pursuance of this section is guilty of an offence.

Failing to provide an evidential specimen for analysis (without reasonable excuse) is a criminal offence, this also includes refusing to provide an evidential specimen.

The charge which will be brought against any person for refusing to supply an evidential specimen for analysis (without reasonable excuse) will depend on if they were 'driving' or 'attempting to drive' a vehicle OR were 'in charge' of a vehicle. They could be charged with either:-

Failing to provide a specimen for analysis while in charge of a vehicle
OR
Failing to provide a specimen for analysis while driving or attempting to drive a vehicle

Failure to provide must always be 'without reasonable excuse'


Reasonable excuse or not?

There could be many 'excuses' put forward by a person why they should not or cannot provide a specimen as required. However what actually amounts to a 'reasonable excuse' is a matter of law. Below are several examples of what may or may not be considered a reasonable excuse.

What is a reasonable excuse?

Mental or physical incapacity - A physical or mental incapacity which prevents a person from either providing a specimen and/or understanding the requirement could possibly amount to a 'reasonable excuse'. However, any such excuses would need to be corroborated by a doctor or medical practitioner.

Genuine medical reasons - A genuine medical reason that is either obvious, believed by the police officer and/or confirmed by a doctor (or medical practitioner) would be classed as a reasonable excuse.

An inability to understand the requirement - A persons (foreigners) inability to understand the requirement being made due to them not speaking/understanding the English language could amount to a 'reasonable excuse'.

What is NOT a reasonable excuse?

A persons mental incapacity or physical incapacity which is due to impairment by alcohol will NOT amount to a reasonable excuse.

Being too drunk to understand the requirement will NOT amount to a reasonable excuse.

A persons mental incapacity or physical incapacity due to the stress of the situation they find themselves in will NOT amount to a reasonable excuse in the absence of any medically diagnosed phobia or long term mental health problems.

Refusal until a persons consults the P.A.C.E (Police and Criminal Evidence Act) codes of practice will NOT amount to a reasonable excuse.

Refusal until a person consults with a solicitor and/or until a solicitor is present will NOT amount to a reasonable excuse.

Refusal until a person has exercised his right to a phone call informing someone of his arrest will NOT amount to a reasonable excuse.

Any kind of mistaken belief by the person to whom the requirement is being made will NOT amount to a reasonable excuse.

Any kind of religious or spiritual beliefs that the person holds will NOT amount to a reasonable excuse.

The absence of an appropriate adult where the person is a juvenile will NOT amount to a reasonable excuse.

In the case of a blood sample, it is up to the doctor (or medical practitioner) as to which part of the body the sample will be taken from, any insistence from a person to take it from anywhere else could constitute a refusal without reasonable excuse.

In the case of a blood sample, a dislike or fear of blood that doesn't amount to a fully blown medically diagnosed phobia will NOT amount to a reasonable excuse.

In the case of a blood sample, a dislike or fear of needles that doesn't amount to a fully blown medically diagnosed phobia will NOT amount to a reasonable excuse.

If you think you have been wrongly charged with failing to provide then expert legal advice from a drink driving solicitor is strongly advised.


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Reference:

[1] Road Traffic Act 1988

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