Failure to Provide a Specimen Charges: UK Laws, Defences & Penalties

If you have been charged with failing to provide a specimen of breath for analysis in the UK, it is crucial to understand the severity of the offence and the potential consequences. 

This offence, under Section 7(6) of the Road Traffic Act 1988, is considered very serious and can result in mandatory disqualification from driving, fines, community orders, or even imprisonment in more severe cases.

When a police officer requests a breath specimen, it is typically due to a road traffic collision, a moving traffic offence, or suspicion of driving under the influence of alcohol or drugs. Failing to comply with this request without a “reasonable excuse” constitutes an offence.

Get Expert Legal Representation For Failure To Provide Charges 

You may have a valid reason that you were unable to provide a specimen of breath for analysis, meaning that you may have a defence to the charge, or you may have committed the offence, and need help mitigating the consequences.

Receiving a conviction for failing to provide a specimen can have severe consequences, including disqualification from driving, substantial fines, and even imprisonment. In such a critical situation, it is crucial to seek expert legal representation.

At Caddick Davies Solicitors, we understand the impact that this charge can have. If you are facing a charge of failure to provide a specimen, don’t hesitate to contact us for a free consultation. We’re here to guide you through the process and explore all available defences and mitigating circumstances that could potentially reduce the severity of the penalties you face.

You can contact our office for a free consultation on 0151 944 4967.

Read on for further insight into failing to provide a specimen for analysis when charged with this offence, including when a breath specimen is requested, the types of specimens, sentencing guidelines, potential defences, and the importance of seeking legal advice.

Understanding The Offence Of  ‘Failing To Provide A Specimen’

An offence of failing to provide a specimen for analysis is provided by Section 7(6) of the Road Traffic Act 1988.

A person is guilty of this offence if they fail to provide a specimen for analysis, when requested to do so by police, without a “reasonable excuse”.

An offence of “failing to provide a specimen of breath for analysis” is a very serious offence which warrants a mandatory disqualification from driving. In addition, the court will either impose a fine, community order or in more serious cases, a prison sentence. 

When Will The Police Request A Breath Sample? 

The process typically starts with a police officer requesting a breath sample from you at the roadside. 

There are three main scenarios where they will ask for this:

1. Road Traffic Accidents – If you were involved in a road traffic collision, the police attending the scene will require all drivers to provide a roadside breath sample. They may also ask for a preliminary drug test to determine if a drink or drug driving offence has occurred. This is to check if alcohol or drugs played a role in causing the accident.
2. Moving Traffic Violations – If you committed a moving traffic offence like speeding or running a red light, and the police pull you over, they can request a breath sample. Again, this is to rule out impairment from alcohol or drugs as the reason behind the violation. They are especially likely to ask if they suspect you of drink or drug driving based on your driving behaviour or if they received a report about an impaired driver matching your vehicle.
3. Suspicions of Impairment – Even if no offence was committed, the police can ask for a breath sample if they have any reason to suspect you are driving under the influence of alcohol or drugs, this is part of the requirement to provide a specimen for analysis. This could be due to the smell of alcohol/drugs, glazed eyes, slurred speech etc.

Types of Evidential Specimens

There are three types of specimen that can be used “evidentially” to demonstrate that an individual is over the legal limit for drugs and/or alcohol:

1.       Blood
2.       Urine
3.       Breath

If you refuse to provide a sample at the roadside, are unable to provide one for medical or other reasons, or if the roadside test indicates alcohol/drugs in your system, you will be arrested. You’ll then be taken to the police station to provide an “evidential” breath, blood or urine sample that can be used in court proceedings for drink/drug driving charges.

In order for the police to charge you with an offence of drink and/or drug driving, they require a specimen that is admissible in court, specifically requiring you to provide a specimen of blood, breath or urine.

When Failure To Provide Charges Are Filed?

If you fail to provide a breath, blood or urine sample for analysis when requested by the police, you will likely be charged with the offence of failing to provide a specimen. You will then be summoned to appear in court within 2-6 weeks after your arrest to enter a plea.

The police will generally charge you regardless of the reason you were unable to provide a sample. In some obvious cases, it may be due to an outright refusal to comply. In other less clear situations, you may have been unable to provide a sample due to a medical condition or mental impairment.

Ultimately, it will be up to the court to decide if your excuse for not providing a specimen was valid and reasonable enough. While police officers do have discretion on whether or not to charge someone, in practice they often choose to go ahead and file charges, letting the court make the final determination.

So even if you had a potential justification for not providing the requested sample, you should still expect to be charged and have your case go before a court for a ruling. The key will be presenting a strong legal defence for why you failed to comply based on the specific circumstances.

Sentencing Guidelines For Failing To Provide A Specimen 

Driving/Attempting to Drive

If you have failed to provide a specimen for analysis, and there is evidence of you driving or attempting to drive a vehicle, then you face a mandatory disqualification for a minimum period of 12 months and a fine, community order or prison sentence of up to 26 weeks.

The sentence that the Court will determine will be based upon a “sentencing range” based upon the “category” that an offence falls within. There are three sentencing categories – determining the level of seriousness of an offence. Category 1 is the most serious and Category 3 is the least serious.

The categories are determined as follows:

• Category 1 – Higher culpability and greater harm.
• Category 2 – Higher culpability and lesser harm OR Lower culpability and greater harm.
• Category 3 – Lower culpability and lesser harm.

Cases will be considered as “higher culpability” if you deliberately refused or failed to provide a specimen e.g. saying no when requested to do so, deliberately trying to trick the machine when providing a breath test, and being obstructive, are all serious offences under laws requiring individuals to provide specimens for analysis.

Cases will be considered “greater harm” if there is evidence of a high level of impairment e.g. slurred words, glazed eyes, unsteady on feet.

The ranges considered by the Court are as follows:

Once you have been placed in a category by the court, the “starting point” is where the court will start of when determining sentence and the “range” is the minimum and maximum sentence that they should consider imposing (although, they have the power to go outside of the range where the facts justify it and based on mitigating and aggravating features).  

Once the court has determined the starting point they will either increase the sentence, if the aggravating features outweigh the mitigating features, or decrease it if the mitigating features outweigh the aggravating features.

Aggravating and Mitigating Factors For Sentencing 

The Court will consider the below aggravating and mitigating features:

In Charge Of A Vehicle 

If you have failed to provide a specimen for analysis, and there is no evidence of you driving or attempting to drive a vehicle, but you were “in charge” of the vehicle, then you face 10 penalty points or a discretionary disqualification up to 12 months and a fine, community order or prison sentence of up to 6 weeks.

The categories remain the same. However, there are additional factors to be considered for “lower culpability” which include:

1.       A genuine attempt to comply.
2.       Honestly held belief but unreasonable excuse.

The ranges considered by the Court are as follows:

Defences For Failing To Provide A Specimen 

If you have failed to provide a specimen for analysis, then you may have a defence to the charge. The typical defences for such an offence are as follows:

“Reasonable Excuse”

A person will not be guilty of failing to provide a specimen if they can demonstrate a “reasonable excuse” as to why they were unable to provide a specimen.

A “reasonable excuse” includes a physical and/or mental medical reason that a specimen could not be provided. This often includes, but is not limited to:

1.       Asthma.
2.       Long COVID-19.
3.       Chronic Obstructive Pulmonary Disease (COPD).
4.       Lung cancer.
5.       Learning difficulties.
6.       PTSD.
7.       Anxiety/panic attacks.
8.       Depression.
9.       A needle phobia (blood sample).
10.   Dehydration (urine sample).

It is usually preferable that the “reasonable excuse” is supported by medical evidence which can include:

1.       Medical records demonstrating a particular condition or symptom.
2.       Letter/report from your GP.
3.       An expert report from a medical professional commenting upon whether your condition would have impacted your ability to provide a sample. 

 Find out more: What are the defences to a drink driving charge.  

If you present a “reasonable excuse” backed by medical evidence for why you could not provide a specimen, the burden then shifts to the prosecution. They must prove beyond a reasonable doubt that your stated excuse was not actually a valid reason preventing you from providing the sample (based on the case Rowland v Thorpe [1970]).

In some instances, even without a documented medical excuse, the court may also acquit you if CCTV or body camera footage clearly shows you making every possible effort to provide a sample, with no deliberate refusal on your part (per the case Cotgrove v Cooney [1987]). However, meeting this evidence standard is difficult and often requires the breath test machine printout to confirm your genuine attempts.

It is important to note that the list of “reasonable excuses” is not exhaustive. There could be any number of reasons, stemming from a single condition or combination of factors, that made you unable to successfully provide a requested breath, blood or urine sample when asked. The key is having supporting evidence to demonstrate why you faced this inability.

Challenging Procedural Errors

Lack Of Statutory Warning

It may be possible to challenge the charge based on procedural failures of the prosecution. Section 7(7) of The Road Traffic Act 1988 provides that an accused must be warned that failure to provide a specimen of breath for analysis is an offence for which they may be prosecuted (the “statutory warning”).

The case of Murray v DPP [1993] provides that if the required statutory warning has not been provided to the accused before the sample of breath is taken then the Defendant has a valid defence to the charge. The burden of proving the warning rests with the prosecution (Cox v DPP [2009]).

The prosecution can be placed to “prove” that the statutory warning was given. This will require either service of CCTV or body cam footage to show that the warning was given, or alternatively, for the officer to attend court and give evidence under oath that such warning was given.

Lack Of Appropriate Adult

If the statutory warning was given, but due to a mental inability to understand or fully appreciate the implications of a warning, then you may also be able to defend the charge. If you were unable to understand and appreciate the warning given, and this is generally accepted by the court, then it will be accepted that this is a “reasonable excuse” for not providing a specimen.

The law is clear that the statutory warning must be understood by the person receiving the warning. If an officer has arrested a person who has a clear mental disorder or vulnerability, or has any reason to suspect that they do, then in the absence of clear evidence to dispel that suspicion the person must be treated as vulnerable for the purposes of Code C of the Codes of Practice.

A person in such circumstances it is generally accepted that an “appropriate adult” to assist during the investigation, and to ensure that the warning is understood by the person in question, is an appropriate procedural safeguard pursuant to Miller v DPP [2018].

In addition to this being a potential “reasonable excuse” it may allow the court to refuse the evidence that the statutory warning was given at all as the admission of such evidence if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it pursuant to Section 78(1) of the Police and Criminal Evidence Act 1984.

Challenging The Equipment Evidence

There are other potential ways to challenge a failure to provide charge by identifying flaws or issues with the prosecution’s evidence against you.

For example, the breath test machine prints out a record of all attempts (successful or failed) to provide a sample. If this printout indicates a potential problem with the machine itself not functioning correctly, it could raise doubts about the prosecution’s case. Similarly, if body camera footage captures an officer commenting that the machine seems faulty or isn’t working right, you would have grounds to request the machine’s calibration certificates and log data to be examined by an expert for any errors that affected the breath testing.

Another possible defence is if key physical evidence was mishandled or discarded by police. When using a breath test machine, officers are supposed to replace the mouthpiece for each new test. If the mouthpiece you used had any cracks or holes allowing air to escape, it could prevent an accurate breath sample reading. If that mouthpiece was thrown away instead of preserved, it undermines the evidence. 

However, it is  important to note that equipment issues alone may not always create enough reasonable doubt, especially if video shows the person clearly not making a genuine effort to successfully provide a breath sample when requested.

The bottom line is identifying any potential flaws, errors or missing evidence related to the equipment and its operating procedures can potentially strengthen your defence against the charge.

Frequently Asked Questions On Failure To Provide Defences 

If I Was Wrongly Arrested, Does That Provide A Defence?

No. The legality of an arrest following a roadside breath test is not a defence to failing to provide an evidential specimen. This was confirmed by the Divisional Court in the case of Bunyard v Hayes [1985].

An offence technically does not need to have been committed for a police officer to request a sample. A police officer is able to request a sample if they have suspicion that an offence has been committed and obtaining a sample allows them to conduct a proper investigation.

What Is Not Likely To Be A “Reasonable Excuse”?

Reasons which are likely to not be seen as a reasonable excuse include:

1.       Mental or physical impairment or incapacity as a result of alcohol or drugs
2.       Mental or physical incapacity as a result of the stress of the situation without a medically diagnosed mental health condition
3.       Refusal to cooperate until consulting a solicitor
4.       Refusal to cooperate until being permitted a phone call
5.       Religious or spiritual beliefs
6.       A dislike of needles or blood that doesn’t amount to a medically diagnosed phobia
7.       A refusal to provide a specimen of blood from a particular part of the body without reasonable excuse

Get Specialist Legal Advice For Your Failure To Provide Charge

Receiving a failure to provide a specimen conviction can have serious consequences, resulting in a disqualification from driving, a fine and even imprisonment. That is why it is so important to have experienced legal representation if you are facing this charge.

At Caddick Davies, we understand just how stressful this charge can be, leaving you worried about your livelihood and your future. We are here when you need us, and we will be on your side, working with you to achieve the best possible resolution to your charge.

If you are looking for expert legal advice regarding a charge of failure to provide a specimen, contact us today for a free consultation using the contact form on our website or calling the office on 0151 944 4967. 

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Neil Davies

Motoring Lawyer at Caddick Davies Solicitors

Caddick Davies is recognised as one of England and Wales’ leading motoring law firms, offering specialist Speeding Solicitors, Drink Driving Solicitors & Dangerous Driving Solicitors.We provide advice and representation on all motoring offences including speeding, the avoidance of disqualification on penalty points or “totting up” (exceptional hardship), driving without due care and attention (careless driving), dangerous driving, drink driving, as well as a range of services related to medical revocation of a driving licence.

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