If you are suspected of driving or being in control of a vehicle whilst under the influence of alcohol or drugs, the police can request that you provide a specimen for analysis.
The police will undertake a roadside breath test or mouth swab and if the initial results indicate a failure you will be arrested and taken to a police station. Usually for drink driving investigations there will be an obligation to provide two samples of breath, or a blood sample for drug driving investigations, however a specimen of blood or urine can also be requested by the police if more appropriate.
Frequently Asked Questions:
What is the penalty for failing to provide offences?
It is a legal obligation to provide a specimen when requested and not to do so is an offence in itself, separate to the offences of drink or drug driving. There are two different offences for failing to comply with such a request:
- If you refused to give a sample of breath at the side of the road then you can be charged with failing to co-operate with a preliminary (roadside) breath test under s.6 of the Road Traffic Act 1988. The penalty for this offence is 4 penalty points and a fine of 100% of your weekly income (minus 1/3 for an early guilty plea) with a maximum cap of £1000.
- If you are taken back to the station, you are required to give two samples of breath or the blood/urine if requested by the police. If you fail to do so then you can be charged with failing to provide a specimen for analysis, without reasonable excuse, when required to do so after driving/attempting to drive under s.7 of the Road Traffic Act 1988. This carries a mandatory disqualification from driving beginning at 12 months and a fine of around 150% of your weekly income. For a first time offence, the maximum penalty can escalate to a 36 month disqualification in addition to a custodial sentence of up to 26 weeks.
What is a defence to this charge?
If you have a ‘reasonable excuse’ that rendered you incapable of giving a sample then you may have a defence. This must be a medically recognised condition, either mental or physical, and can include severe asthma, a chest infection, an actual panic attack, a phobia of needles, etc. however, you would have to present some sort of proof, i.e. medical records. Claiming that your collagen enhanced lips are too big to blow into the machine, as argued by former Ex on the Beach star Scarlett Harrison, will not be considered a valid excuse.
Will I get my licence back as soon as my disqualification is over?
No, if you have been convicted of failing to provide a specimen for analysis then you will be classed as a ‘high risk offender’. This means that DVLA will require you to pass a medical examination to ensure that you do not misuse or are not dependent on alcohol before your licence is returned to you.
‘I didn’t provide a sample however I wasn’t drinking so I’m not guilty’
Failing to provide a specimen is an offence in itself and so it is irrelevant whether you had been drinking or not. If there is evidence that you had been drinking or you had appeared intoxicated at the Police Station then this will increase the penalty you receive however, even if you were completely sober, if you did not give a specimen without a reasonable excuse then you will face a minimum disqualification of 12 months.
‘I didn’t specifically refuse to give a sample so I’m not guilty’
You don’t have to adamantly refuse to give a sample to be guilty. The offence is only ‘failing to provide a specimen’ so whether you outright refuse or whether you just say “I want to speak to a Solicitor” without then giving a sample, you still will be guilty of this offence as this is often used to try and buy time for the alcohol to leave the system. Incapacity through drink is not a defence to this charge and so if you were too intoxicated to give a specimen, you will still be guilty.
‘I didn’t get the option of providing blood or urine so I’m not guilty’
The law has changed and so now if your reading is 50mg or below at the roadside, you cannot elect to give a specimen of blood or urine instead. If you are genuinely unable to give a breath specimen then you should inform the Police Officers of this in order to give an alternative sample. This will only be allowed if it is clear that you genuinely tried to give a breath specimen. If you are charged and rely on this as a defence then you must be aware that all attempts at providing specimens are recorded and so it will be down to the Court to determine whether there was a genuine effort.
If you failed to provide a specimen after committing a drink or drug driving offence and need some advice, contact our experienced motoring offences team on 0115 910 6239