Failure to provide a test sample

When someone is stopped or arrested on suspicion of drink driving they may genuinely think they don't have to provide a test sample until they've spoken to their solicitor. Others may simply refuse to cooperate carte blanche as a way to evade prosecution. And in rare cases someone may have a genuinely reasonable excuse why they can't provide a specimen, for example on medical grounds. This article explains your rights and potential repercussions in each situation.

Offences

Three separate offences exist for failing to provide a test sample :

1. Failure to co-operate with a preliminary test : a person commits this offence by failing to submit to a roadside breathalyser test or sobriety/impairment test.
2. Failing to provide an evidential specimen for analysis : a person commits this offence by failing to provide breath, blood or urine samples at the police station.
3. Failing to give permission for laboratory test : if a specimen is taken, it cannot be subjected to a laboratory test unless the person from whom it was taken expressly agrees.

Possible repercussions of failing to provide a test sample

The maximum penalties for the above offences are as follows:

1. Failure to co-operate with a preliminary test : four penalty points (to remain on your licence for four years) or a 12-36 month driving disqualification, and a £1,000 fine. Read page 129 of the Magistrates' Court Sentencing Guidelines for information on aggravating and mitigating factors that may increase or decrease the penalty.
2. Failing to provide an evidential specimen for analysis : the maximum penalties for this offence vary depending on whether the offender failed to provide a specimen after either 'driving/attempting to drive' or being 'in charge' of a vehicle:
   1. Maximum penalties for failing to provide a specimen for analysis after driving/attempting to drive include 3-11 penalty points (to remain on your licence for 11 years) or a 12-36 month driving disqualification, a £5,000 fine, and six months imprisonment. If you were convicted of a similar offence within a ten year period preceding the most recent crime, a mandatory three year minimum period of disqualification will be imposed. Note also that the judge may grant a 25% reduction in the period of disqualification if you attend a drink driving rehabilitation course. Read page 128 of the Magistrates' Court Sentencing Guidelines for additional information on the aggravating and mitigating factors that may increase/decrease the penalties for this offence.
   2. Maximum penalties for failing to provide a specimen for analysis after being arrested in charge of a vehicle are less severe: 10 penalty points (to remain on your licence for four years) or a 12-36 month disqualification, a £2,500 fine, and three months imprisonment. Read page 129 of the Magistrates' Court Sentencing Guidelines for additional information and to learn about the various aggravating and mitigating factors that could affect the penalty you could receive.
3. Failing to give permission for laboratory test : if a specimen is taken, it cannot be subjected to a laboratory test unless the person from whom it was taken expressly agrees. The maximum penalties for this offence are identical to those for 'failing to provide an evidential specimen for analysis' (discussed above).

Your rights

(1) Preliminary test

As a preliminary step in most drink driving investigations, the police administer a breath test and/or sobriety test at the roadside. The law only permits a uniformed constable to perform these tests, not a plain clothes officer.

Moreover, the constable may only initiate testing if they have 'reasonable cause' to suspect that a person has either consumed alcohol or committed a traffic offence. If the constable makes an error, however, and does not have reasonable cause, you must still provide a specimen and/or perform the sobriety/impairment test -- unless you have a 'reasonable excuse' not too (discussed below).

If you fail to cooperate or the test shows a breath alcohol level above 35 microgrammes (mg), the police may arrest you.

To actually prove that you have committed a drink driving offence, however, the police must take you back to the police station and carry out additional testing.

(NB. This is because the police use hand-held breathalysers for roadside stops, which sometimes provide inaccurate results, and since the results cannot be relied on, they are not admissible as evidence in court proceedings.)

(2) Additional testing

Once back at the station, the police will usually ask you to provide two additional breath specimens using a larger evidential breath testing device. The lower reading of the two breath specimens should be used and the other ignored.

If the lower of the two breath specimens is no more than 50 mg, you may request that a sample of blood or urine be taken. The decision as to which of the two is taken is made by the police constable. This sample is then used to establish whether an offence has been committed and the earlier breath tests are ignored.

(3) Blood and urine testing

As mentioned above, if the breath specimen is no more than 50 mg, you may request that a sample of blood or urine be taken. This is because blood and urine tests are widely considered to be more accurate than breath tests in assessing blood alcohol levels.

The police may also request a blood or urine test if you are unable to provide a breath specimen because of some medical condition (e.g., severe asthma or emphysema).

(4) "Reasonable Excuse"

As indicated above, if you have a "reasonable excuse" you do not have to provide a specimen of breath, blood, or urine. Invariably, this means you suffer from some kind of physical or mental infirmity that precludes you from submitting to a test.

In one case, a court found the accused's shortness of breath during a panic attack to be a reasonable excuse for failing to provide a breath specimen. In another, however, the court said aversion to the sight of blood did not excuse the accused from giving blood (since he could either shut his eyes or look away as blood was drawn).

The courts have also affirmed that waiting for legal advice does not constitute a reasonable excuse for failing to take a test unless a solicitor is immediately available, either in person or by telephone, "for a couple of minutes" and any delay in the test would be "very short". If the police fail to allow you to speak with a solicitor in these circumstances, a court may rule the specimen inadmissible -- but only if admission of the evidence would unfairly prejudice your case and outweigh the public interest in allowing it.

Finally, even if the police act in bad faith and you did not drive, attempt to drive, or take charge of a vehicle, you would not have a reasonable excuse to refuse a test.

Getting legal help

If you've been charged with a drink driving related offence, you need to consider your position very carefully as the penalties can be severe. In every case, you are strongly advised to seek legal help. You can find a criminal law solicitor in your area via Contact Law .

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