If you are charged with

Failing to provide

Failing to Provide

If the police make a valid requirement that you provide a specimen of breath, blood or urine it is a criminal offence to fail or refuse to provide the specimen without a reasonable excuse.

The point of the offence is to deter non-compliance with the test procedure; so, it is treated more seriously than drink driving itself and it is far easier to find yourself in prison for failing to provide than it is for drink driving.

how to go about

Winning your trial

Your case is unique, so our approach to it is unique too.

The first step in our process is to check whether the police had the authority to require a specimen of breath. They cannot simply demand a specimen from anybody they stop, there must be a genuine investigation underway into whether a drink driving offence has been committed by the person being asked for a specimen. If there isn’t then the result of the test should be excluded meaning the prosecution would not be able to prove their case against you.

We will also check to see that the police have followed the correct procedure when they required the specimen from you. For example, if the officer fails to warn you that you can be prosecuted for not providing then the court must find you not guilty.

Next, we consider whether you have a reasonable excuse for not providing. Reasonable excuses can be medical, e.g. I have asthma, I have a fear of needles or I was so dehydrated I couldn’t urinate. They can also be non-medical such as that the breath test machine was faulty or that you did not understand the requirement being made of you. In a recent case, the police officer had noted down that our client was trying his best to provide but failed to do so. We successfully argued that the case should be dropped because there was no suggestion that out client had deliberately failed or refused to provide. We’ve even won cases where our client was found to have been so drunk that they were physically incapable of providing!

An important point in these cases is that where the defence raise a reasonable excuse it is for the prosecution to prove, beyond reasonable doubt, that you did not have a reasonable excuse, which makes life that little bit easier.

Sentencing

When passing sentence, courts will refer to the Sentencing Guidelines. The judge will usually follow the guidelines but can go outside of them, either to impose a harsher or more lenient sentence, where they think that the case deserves it.

The court must disqualify a convicted person for at least 12 months but unless you can show that you had an honest but unreasonable excuse, e.g. because you wanted to speak to a solicitor before providing, then you should assume the starting point is a 17 month driving ban and a community order if you are convicted or plead guilty.

Deliberate failure/refusal while seriously impaired

Starting point
12 weeks’ custody
Range
High level community order – 26 weeks’ custody
Disqualification
29 – 36 months
2nd offence in 10 years
36 – 60 months

Deliberate failure/refusal

Starting point
Medium level community order
Range
Low level community order – High level community order
Disqualification
17 – 28 months
2nd offence in 10 years
36 – 52 months

Honest but unreasonable excuse

Starting point
Fine of 150% of weekly income
Range
Fine of 100% of weekly income – Low level community order
Disqualification
12 – 16 months
2nd offence in 10 years
36 – 40 months

How it works

The court will look at the starting point relevant to your alcohol level then consider anything that makes the offence more serious and any mitigation put forward by your solicitor to decide whether to move up or down the range available to them. In extreme cases, the judge may move outside of the sentencing range altogether.

You will normally receive a reduction in sentence if you plead guilty; however, that cannot help you avoid the driving ban nor do you receive a reduced ban for pleading guilty.

We will always ask the court to allow you to take the drink driving awareness course. If you complete the course by the deadline the court gives you then your driving ban will be reduced by 25%. You can find more information about the drink driving course providers, where courses are held and book a course here.

Drink Driving Defence Success

Our recent cases

The Case: R v AB

We represented AB who was accused of failing to provide a specimen for analysis at the police station. We successfully argued that the police officer had not explained the procedure properly and thus our client had not understood the requirement for him to provide.

The Result: AQUITTED

He was acquitted and an order allowing him to recover his legal costs was made.

The Case: R v TM

Client was charged with failing to provide a specimen of breath following a collision involving his vehicle. He was not present at the scene of the crash and was found by police at home in bed. We made representations to the Crown based on their evidence identifying him as the driver as well as debating whether the police officers were genuinely engaged in an investigation allowing them to require a specimen of breath given the circumstances in which TM was found.

The Result: CASE DROPPED

The Crown Prosecution Service accepted our representations and discontinued the case against our client.

The Case: R v CW

CW had a long-standing needle phobia. The prosecution alleged that he had simply refused to provide a blood specimen. During evidence a police sergeant claimed that CW had never mentioned his phobia; however, another police officer gave evidence that CW had told the sergeant about the phobia. We were also able to obtain evidence from the hospital consultant who treated CW and his GP confirming that the needle phobia had been diagnosed years before.

The Result: AQUITTED

CW was acquitted and costs awarded against the prosecutor.

The Case: R v AS

The police forced AS to go through the breath testing procedure without a solicitor despite hi being a foreign national who spoke limited English.

The Result: CASE DISMISSED

The prosecution case was dismissed once it became clear that AS could not understand the instructions being given to him by the police officer.