There seems to be a common misconception that if you are arrested on suspicion of drink driving, you can refuse to give the Police a sample of breath for analysis. Some people genuinely believe that if they don’t give a sample of breath, then the Police can’t prove they were drink driving and therefore can’t charge that person with any offences.
This might seem like a logical thought process, but in fact if a person refuses to provide a breath sample, or messes around with the intoxilyser machine, sucking on the pipe, giving short breaths etc to try and fool it, then the police will charge with fail to provide as an alternative.
If you are arrested on suspicion of drink driving but subsequently charged with fail to provide, then you are still looking at a minimum 12 month disqualification and in extreme cases, conviction on a fail to provide offence can result in 6 months’ custody. It is very much as serious an offence as drink driving itself. It could, by some Courts, be viewed even more seriously as not only were you potentially drink driving, but then you were trying to circumvent the process to try and get away with it. Not something Courts look too kindly on.
There is another misconception that if you don’t provide a breath sample, then you can request a blood or urine sample as an alternative. This isn’t correct; there are very specific circumstances in which an officer can offer an alternative method such as when the intoxilyser machine malfunctions meaning they can’t get a reliable reading, or if you advise them that you have a medical condition (eg asthma, chest infection) that prevents you from giving a full breath sample, and only then can the PC opt to request a blood or urine sample, and which you are asked for is at the discretion of the PC. Unfortunately you do not get to choose (again, a medical reason that means you are unable to give blood or urine should be taken into consideration, but the police do not have to simply choose whichever you prefer).
There is another side to a charge of fail to provide. We recently represented a young father (Martin) who was reported by staff at a McDonalds drive through as being a potential drink driver, and was at home half an hour later when the Police arrived and asked him to provide a breath test. Martin had been out for an after work drink with colleagues and had 1 pint of beer, but had consumed a double vodka and coke since getting home and gave a positive screening breath test. Despite his account that he would not have been over the limit whilst driving he was arrested and transported to the local Police Station for a full procedure.
Whilst at the station, confident that he had not been drink driving, Martin was happy to give a breath sample. The intoxilyser machine malfunctioned partway through the process meaning that the Police could not get a full reading from it and opted to go for a blood sample, which Martin instantly agreed to.
The medical professional was called and despite many efforts was unable to find a suitable vein from which to take a blood sample and so that too was abandoned, and the procedure for urine began.
Martin agreed without hesitation to a urine test however warned the PC that he had recently undergone prostate surgery meaning he sometimes had trouble starting the flow of urine. Undeterred, the PC pressed on with the procedure.
Martin was able to provide a very small sample within 10 minutes of the start of the process but despite his best efforts and several glasses of water was simply unable to provide a further sample within the allotted timeframe.
He was charged with fail to provide.
At Martin’s trial we were able to successfully demonstrate to the Court that far from a deliberate refusal or failure to comply with the process, that Martin had been nothing but courteous and compliant at every stage. Each time he was asked to provide a sample he agreed immediately, and the reasons that the samples could not be obtained were outside of his control. (breath sample – broken machine / blood sample – no vein / urine sample – medical reason).
Therefore, we said, the offence was not made out and he should not be convicted. The Court agreed with us.
Martin was cleared of all charges and a costs order was awarded to him by the Court meaning we can now claim back a portion of the costs he has incurred to prove he was innocent of the offence of failing to provide a sample for analysis.
(If he had successfully provided a sample and was charged with drink driving, we would have prepared a strong case to demonstrate to the Court that he could not have been over the limit when he drove home from McDonalds with his kids’ tea on the back seat…and we would have won that case too!)
If you are being charged with fail to provide or drink driving, our specialist team can help. Call us now for free initial advice on 01623 397200.
