Failing to Provide a Specimen

If you’re stopped by the police and suspected of driving under the influence of something illegal, refusing to take a breath test, or refusing to provide any requested blood or urine sample, to the police will not help you avoid being prosecuted for drink driving. In fact, failing to provide a specimen to the police of either breath, blood or urine is a criminal offence in itself, carrying the same range of penalties as a drink driving offence.

The following guide for drivers in the UK looks at the potential consequences of failing to provide a specimen to the police, and whether or not there is any defence to this offence.

What does the law say about failure to provide a specimen?

In the course of an investigation into whether a motorist has committed an offence of drink driving, the police are permitted to ask the suspect to provide two specimens of breath for analysis, or a specimen of blood or urine for a laboratory test. The police can also ask you to take a breath test if you are suspected of being in charge of a vehicle over the limit.

You do not need to have committed a traffic violation or have been involved in a road traffic collision for the police to ask to breathalyse you, provided they have a reasonable suspicion that you have been driving or are in charge of a vehicle while over the legal limit.

In England, Wales and Northern Ireland, the legal limit for drink driving is 35 micrograms of alcohol per 100 millilitres (ml) of breath, and just 22 micrograms in Scotland. However, it is impossible to know how much you can consume and stay under the limit, since this can depend on your weight, age, sex and metabolism, as well as the type of alcohol that you are drinking and amount of food that you have eaten, as well as factors like stress and fatigue.

In addition to the offence of drink driving, for which the police would need to adduce clear evidence to the courts of a motorist being over the legal limit to secure a conviction, failing to provide a specimen to the police for alcohol testing is its own separate offence.

Under section 7(6) of the Road Traffic Act 1988, this provides that a person who, without reasonable excuse, fails to provide the police with a specimen when required to do so is guilty of an offence. A specimen refers to a sample of their breath, blood or urine. However, section 7(7) of the 1988 Act makes provision for a police warning first. This provides that on requiring a person to provide a specimen for analysis, the police must warn the motorist that any failure to provide a sample, as requested, may result in criminal prosecution.

What will happen if you fail to provide a specimen?

If you are pulled over by the police and asked to take a breathalyser test, but refuse to do so, in most cases you will be arrested. This is because you will be potentially guilty of the offence of failing to provide a specimen. You will also potentially be guilty of this offence if you do not provide sufficient breath for an analysis to be satisfactorily carried out.

Once back at the station, you will then be asked to provide an evidentiary sample. This could be either a breath, blood or urine sample, where you may again be breaking the law if you refuse to do so. However, on each occasion the police should warn you of this.

If you continue to refuse to provide a sample for analysis, unless you have a reasonable excuse not to do so, you will almost certainly be charged with this offence. Unfortunately, it will take a number of hours to get any alcohol out of your system, so any attempt to buy yourself some time is likely to be futile. This is also likely to result in you being charged with the equally serious offence of failing to provide a specimen.

That said, the police may consider a medical condition as a reasonable excuse not to provide a sample. For example, if you have asthma or another serious respiratory condition, you may be able to justify not taking a breath test. However, you will instead be offered a blood or urine test, for which you would again need an excuse, such as suffering from a phobia of needles, or having prostate problems or a urinary tract infection. To refuse all three types of tests, you would need a genuine and reasonable excuse for all three.

Penalties for failing to provide a specimen

Where you have been driving or attempting to drive, the courts must impose a mandatory ban of 12 months if you fail to provide a breath, blood or urine sample as requested by the police, unless the court is satisfied that you had a reasonable excuse not to do so.

You could also be looking at a 6 months’ custodial sentence, plus an unlimited fine, depending on the seriousness of the offence and the circumstances involved. When assessing the gravity of the offence, the court must determine the offender’s culpability and the harm caused, where any deliberate refusal or failure to provide a specimen will equate to higher culpability, while high levels of impairment will indicate greater harm.

If you are found to be in charge of a vehicle while over the legal limit or unfit through drink, and have failed to provide a breath, blood or urine sample on request, you could be given up to 3 months’ custody, a £2,500 fine, plus a discretionary ban or 10 penalty points.

Sentencing guidelines for failure to provide a specimen

When it comes to refusing to take a test having been caught driving or attempting to drive, under the failing to provide a specimen sentencing guidelines there are three levels of seriousness, each with different sentencing ranges and periods of disqualification:

a category 1 offence: a high level community order (CO) to 26 weeks’ custody, with a 29 to 36 month ban, to be extended if imposing a sentence of immediate imprisonment
a category 2 offence: a low level CO to a high level CO, with a 17 to 28 month ban
a category 3 offence: Band B fine to a low level CO, with a 12 to 16 month ban.

The starting point for a category 1 offence is 12 weeks’ custody; for a category 2 offence, a medium level community order; and for a category 3 offence a Band C fine. A Band C fine is 125% to 175% of the motorist’s net weekly income, while a Band B fine is 75% to 125%.

In category 1 cases, where the court decides to impose an immediate custodial sentence, this will be in addition to a driving ban and not instead of disqualifying the driver. The driving ban will also be extended by one half of the custodial term imposed, in this way ensuring that the driving ban will not expire or be diminished by the time spent in custody.

Factors affecting sentencing

In deciding on an appropriate sentence, there may be various aggravating factors relating to both the offence and offender which may increase the seriousness of the offence. These can include previous convictions, as well as whether the motorist was carrying passengers, if they were involved in an accident or evidence of an unacceptable standard of driving.

However, there may also be various mitigating factors which may reduce the seriousness of the offence. These could include no previous convictions, being of good character and showing remorse, although the motorist who has deliberately failed to provide a specimen may be facing an uphill struggle when it comes to asking the court to exercise any leniency.

The maximum penalties for failing to provide a specimen are the same as those imposed for drink driving, in this way removing any incentive for a motorist to try to avoid criminal prosecution and disqualification for driving while over the legal limit. In some cases, the motorist may even find it more difficult to mitigate a section 7(6) offence, resulting in a harsher overall sentence than if they had allowed the police to test for alcohol.

Driving ban for failing to provide a specimen

The court must impose a minimum period of disqualification from driving of 12 months for failing to provide a specimen. However, the minimum ban could be longer. For example, if a motorist has two or more previous disqualifications for periods of at least 56 days for other motoring offences in the preceding 3-year period, they will be looking at a mandatory 2-year ban. This is because the minimum ban is automatically increased in these cases.

Equally, if the motorist has been convicted of the same offence within the last 10 years, or another similar offence, including drink driving, the court must impose a minimum 3-year ban. This could be increased to up to 5 years, or longer, if the motorist is also sent to prison.

When considering the sentencing guidance regarding the length of disqualification in the context of any second offence, the period to be imposed by the court will depend on an assessment of all relevant circumstances, including how much time has passed since the imposition of the earlier ban and the seriousness of the current offence, although disqualification must be for at least 3 years. For a category 1 offence, the disqualification range should be between 36 to 60 months, to be extended if imposing immediate custody; for a category 2 offence, 36 to 52 months; and for a category 3 offence, 36 to 40 months.

Is there any defence to failing to provide a specimen?

Alcohol affects everyone differently, where even a small amount can impair your ability to drive or put you over the legal limit. The only safe option is to avoid alcohol completely.

However, for many motorists who have still taken the risk of drink driving and have been stopped by the police, refusing to provide a specimen can often compound an already unwanted situation, not least because the courts are unlikely to show any leniency for a motorist who has refused to cooperate, especially if you have caused an accident.

Still, there are ways in which a motorist can seek to defend their refusal, including where they can adduce sufficient evidence to show that they had a ‘reasonable excuse’ not to provide a specimen of breath, blood or urine. This could include various different medical or even mental health conditions, although you would usually need an expert opinion to support the contention that this excused your refusal to provide a sample as requested. For example, if you have asthma, you would need to show that this prevented you from taking a deep enough breath to activate the machine or that to do so would trigger an attack. You would also need to provide evidence from your GP that you suffer from this condition.

Additionally, an assessment can be made of the way in which the police conducted your roadside arrest and requests for sample(s), where any failure to follow the correct procedures may also result in your acquittal. Under section 7(7) of the 1988 Act, the police must have provided you with a warning that you could be prosecuted if you fail to provide a sample where, if they have failed to inform you of this, the case can be challenged.

What should you do if charged with failing to provide a specimen?

If you have been stopped by the police on suspicion of drink driving, or being in charge of a vehicle while over the limit, and have been charged with failing to provide a specimen, you should seek immediate legal advice from a specialist in motoring offences.

By securing expert advice and representation, you stand the best possible chance of avoiding a conviction or having your sentence for failing to provide a specimen reduced.