Failing to Provide a Specimen FAQs

The Offence

Where can I find the law about failing to provide a specimen?

The law on failing to provide a specimen of breath, blood or urine for analysis is in section 7 Road Traffic Act 1988.

I wasn’t driving do I have to provide a sample?

Yes. If the police suspect that you were driving, attempting to drive or you were in charge of a vehicle with alcohol or drugs in your body they have the power to make you provide a sample of blood, breath or urine. If you don’t provide the sample then you will be charged with failing to provide.

Even if the police eventually decide that you were not driving you can still be charged.

Sometimes the police, the Crown Prosecution Service or a Magistrates’ Court might decide that you were failing to provide when you were in charge of a vehicle (instead of driving or attempting to drive). That version of the offence is less serious and does not always result in a disqualification from driving.

I refused to take the breathalyser but I would have given a blood sample. What can I do?

If the police ask you to provide a breath sample you do not have the automatic right to ask for a blood (or urine) sample instead. If you refuse to take the breath test but tell the police that you want to give a blood sample you will normally be charged with failing to provide a specimen of breath.

If you refused to provide for a good reason that might give you a defence at court. A good reason would normally be a medical reason. It is quite difficult to say at court that there was a medical reason for refusing to take the breathalyser. Magistrates will usually say that you should at least have tried to blow into the machine. You should probably consider taking legal advice before you try to challenge a prosecution with this defence.

I was having a panic attack when I was being breathalysed. Is this a defence?

It can be, but having a panic attack is not an automatic defence. If you can establish a good medical reason for not being able to provide a specimen that might be a defence. It is not enough just to go to court and say that you did not provide because you were having a panic attack. You would need medical evidence and probably a medical expert to give evidence at your trial. They would have to look at records from the police station and see your medical records too.

I refused to provide a specimen until I spoke to a lawyer. Can the police still charge me with failing to provide?

Yes they can. The police have to allow you access to a solicitor when you are in the police station. They do not have to delay the breathalyser procedure until you have spoken to a lawyer. If someone is available straight away (on the phone or in person) then the police should let you speak to them first. But it usually takes some time to get through to a solicitor on the phone. The police are allowed to breathalyse you then let you speak to your lawyer later.

I tried as hard as I could to blow into the breathalyser. Can I still be convicted of failing to provide a specimen?

No. If you genuinely tried as hard as you could but could not provide but could not then you have a defence. Having said that it can be quite difficult to establish this at court. You would probably need some evidence to back your case up such as: evidence of a serious medical condition; evidence that some trauma that you had suffered before being breathalysed had affected you; or evidence that the breathalyser machine was not working properly. Most of these would need an expert witness to look at the evidence and to write a report before your trial.

I have asthma/chronic obstructive pulmonary disease (COPD) which prevented me from providing a sample of breath. Can I still be charged with failing to provide a specimen?

Yes you can still be charged. Having asthma is not automatically a defence to failing to provide a specimen. You need to be able to show that the asthma/COPD means that you cannot generate enough breath to activate the machine or that you were suffering an attack at the time which affected you.

I provided one sample but failed the second. Can I still be convicted?

You have to provide two samples in the breathalyser machine. (If you provided a preliminary sample at the roadside that does not count as a sample.) If you fail to provide the second sample then you will be charged with failing to provide.

I don’t think that the breathalyser was working properly. Is this a defence to failing to provide a specimen?

Yes. If the reason that you could not provide is due to a fault with the breathalyser then you will not be convicted. Most breathalyser machines will tell the operator that there has been a fault. When that happens the police will usually reset the machine, use a different machine or require a sample of blood/urine. Because the machine gives a warning, it is very rare for someone to be charged following a malfunction. You might need an expert to examine the machine or at least the print out from the machine to see if they can detect a fault.

The breathalyser in the police station was not working properly so the police asked me for a sample of blood/urine. Can I refuse to provide the sample of blood/urine?

No. The police are allowed to change over to a sample of blood/urine if the machine is not working. The requirement is just the same and you have to provide the sample.

I refused to provide a blood sample because I am afraid of needles. Can I still be convicted of failing to provide a sample?

Not normally. If you told the police that you have a needle phobia they should normally change over to a requirement for urine instead of blood. If they did not do this you may have a defence. The needle phobia has to be genuine. Most people with a genuine needle phobia will have it documented in the medical records kept by their GP. You would usually need a report from a medical expert to back up your defence.

The police asked me for a blood sample. I refused but said that I would provide urine (or vice versa). Do I have a defence?

Probably not. It is up to the police to decide what type of sample that you have to provide. You do not have the choice. Sometimes there might be a genuine (usually medical) reason for not providing a particular type of sample. If so you might have a defence. You probably need to consult a lawyer for some advice before going down that line.

Should the police have let me see a doctor before I was breathalysed?

It depends. If you need urgent medical treatment or hospitalisation this takes priority over the breathalyser procedure. Also if there is a medical reason for your not providing a sample the police will often call a medical practitioner. If neither of these apply then the police are entitled to delay your seeing the nurse or doctor.

The police took a sample of my blood when I was unconscious. Can they do this?

Yes. They can only use the sample with your consent. They will ask for that consent once you regain consciousness. If you say no then you will be charged with failing to allow the police to use the sample which amounts to the same thing as failing to provide a sample.

The police have asked for my consent to use a sample of my blood that they took when I was unconscious. Should I say yes?

Yes you should. If you do not give consent you will probably be charged with failing to allow the police to use your sample. The maximum penalties on conviction are just the same as for failing to provide a sample or for driving with excess alcohol.

Sentences and penalties

What is the that can happen at court for failing to provide a specimen?

The maximum sentence for failing to provide a specimen is 6 months in prison and a mandatory disqualification from driving.

In practice the maximum sentence is rarely imposed the magistrates have guidelines that they use to decide the sentence in each case.

What sentence will I get for failing to provide a specimen?

The sentence at court depends on the facts of your case. The Magistrates’ Court Sentencing Guidelines deal with failing to provide a specimen at page 128. The scenarios in the guidelines do not cover every type of case but they will give you a good idea of the general level of penalty.

  • Defendant refused test when had honestly held but unreasonable excuse: Band C fine AND driving disqualification of 12–16 months.
  • Deliberate refusal or deliberate failure: Starting point of a low level community order with a range from a band C fine to high level community order AND driving disqualification of 17–28 months.
  • Deliberate refusal or deliberate failure where evidence of serious impairment: Starting point of 12 weeks custody with a range of a high level community order to 26 weeks custody AND driving disqualification of 29–36 months.

A second conviction for failing to provide or for a number of drink/drug driving offences in 10 years means a minimum ban of 3 years.

What sentence will I get for failing to provide a specimen if I was in charge of a vehicle?

In a case where you were not driving or attempting to drive the maximum sentence is 3 months in custody and a driving disqualification. The actual sentence depends on the facts of the case. The Magistrates’ Court Sentencing Guidelines deal with failing to provide a specimen at page 129.

  • Defendant refused test when had honestly held but unreasonable excuse: Fine AND 10 penalty points.
  • Deliberate refusal or deliberate failure: Starting point of a fine with a range from a fine to medium level community order AND consider disqualification OR 10 penalty points.
  • Deliberate refusal or deliberate failure where evidence of serious impairment: Starting point of a medium level community order with a range from a low level community order to 6 weeks custody AND disqualify 6-12 months.

Will I be banned from driving for failing to provide a specimen?

Yes. If you convicted of failing to provide a specimen when you were driving or attempting to drive you will be disqualified for at least 12 months.

There are two exceptions:

  • If you are convicted of failing to provide when you were in charge of a vehicle (not driving or attempting to drive) you can often be given 10 penalty points instead of a ban.
  • If the magistrates find special reasons not to disqualify you might be given 10 points instead of a ban. Special reasons cases are quite rare for failing to provide.

Will I get penalty points for failing to provide a specimen?

No (in most cases). You will be disqualified from driving but will not get penalty points as well. There are two exceptions.

  • If you are convicted of failing to provide when you were in charge of a vehicle (not driving or attempting to drive) you can often be given 10 penalty points instead of a ban.
  • If the magistrates find special reasons not to disqualify you might be given 10 points instead of a ban. Special reasons cases are quite rare for failing to provide.

Can I be given a fixed penalty for failing to provide a specimen?

No. Fixed penalties are not available for failing to provide a specimen.

Will I be banned from driving for failing to provide a specimen at the roadside?

No. The penalty for failing to provide at the roadside is a fine and 4 penalty points. You will only be banned if you reach 12 points or more.

Is there a difference in sentence between failing to provide at the roadside and failing to provide in the police station?

Yes there is a big difference. Failing to provide at the roadside normally results in 4 points and a fine. Failing to provide in the police station has a maximum penalty of 6 months in prison and a minimum driving ban of 12 months.

Is failing to provide a specimen more serious than drink driving?

No. The maximum penalties for driving with excess alcohol and failing to provide a specimen are the same. Each case is different. Magistrates use sentencing guidelines to decide the sentence for each individual driver based on the facts before them.

Court Cases

Can I take my failing to provide case to the Crown Court?

No. Cases of failing to provide a specimen are “summary only”. That means that they have to be dealt with in a Magistrates’ Court. You cannot have a jury trial for failing to provide a sample.

If I lose a trial for failing to provide a specimen, can I appeal?

Yes. You can appeal your conviction for failing to provide a specimen to the Crown Court where it will be re-heard by a judge and two magistrates. You have 21 days after you are sentenced to appeal.

If my sentence for failing to provide a specimen is too high, can I appeal?

Yes. You can appeal your sentence for failing to provide a specimen to the Crown Court where it will be re-heard by a judge and two magistrates. You have 21 days after you are sentenced to appeal.

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