There are two types of offences under the Road Traffic Act 1988.The first is one of failing without reasonable excuse to provide a specimen of breath for a breath test when required to do so by a police officer in uniform under section 6(4) of the Act. This is the roadside breath test. The second is one of failing to provide a specimen of blood, urine or breath for analysis under sections 7(6) and 7A of the Act. This is when the police request a sample at the police station. The summons for this offence should make clear whether the defendant was actually driving or attempting to drive or in charge of the motor vehicle. This will make a difference to sentence if convicted. Both offences can only be dealt with in the Magistrates Court unless linked with a more serious matter destined for Crown Court. Then the Crown Court can only deal with them if there is a guilty plea and are bound by the sentencing powers of the Magistrates Court. If there is a not guilty plea the offences would be sent back to the Magistrates Court for trial.
The Roadside Breath Test
This can only be requested by a police officer in uniform. Only a Home Office approved breathalyser can be used. The officer must have a reasonable suspicion that the person is or had been driving or attempting to drive a motor vehicle on a public road or public place having consumed alcohol or that the person had committed a traffic offence Driving also includes being in charge of a vehicle. An officer can also request a breath test where there has been an accident. If the driver is in hospital as a result of the accident he can still be required to take a breath test provided that the doctor treating him has no objection
The defendant can argue that he had a reasonable excuse for not providing a roadside breath test. He does not have to prove it beyond reasonable doubt only that it is probably true. An example might be that he was in a hurry to seek medical treatment.
The maximum penalty is a level 3 fine (up to £1000), 4 penalty points on the licence unless special reasons are successfully argued and discretionary disqualification. Special reasons could be an emergency even if this was not sufficient to provide a defence.
Failing to provide samples at the Police Station
This is the more serious offence of the two. Usually the person will have been arrested after taking a roadside breath test which proved positive. The police can request a sample when investigating a drink or /drugs driving offence. The officer can request two specimens of breath or blood or urine for alcohol analysis. It is entirely up to the police as to which sample is taken. Breath is the normal choice with blood or urine only being taken if the breathalyser is broken or unavailable or there are medical reasons for not taking a breath sample. If the police request a sample of blood they must ask whether there are any reasons why a sample should not be taken .There is case law to suggest that the police act reasonably and not ignore for example someone who declines to provide blood due to religious reasons.
The officer must warn the person that a failure to provide a sample may make him liable to prosecution. If the person is not able to understand the warning due to language difficulties then the police should ensure that the warning is interpreted. If a person is unconscious then a police surgeon may take a sample of blood. Once the person is awake he must be told that a sample has been taken and be asked for his permission to submit the sample to a lab test. A refusal amounts to a failure to provide.
The police do not have to delay the procedure to allow the person to consult a solicitor.
Examples of Fail to provide
Not providing sufficient samples of breath at the required pressure, removing the mouthpiece on numerous occasions, not blowing properly and not complying with instructions would lead to the offence. If the person has a phobia or medical reason for not providing a breath sample he must inform the officer so an alternative sample can be taken. Refusing to provide a blood or urine sample on the grounds of embarrassment would lead to the offence. Offering for a blood sample to be taken from an inappropriate part of the body such as a toe or private part would lead to the offence. Claiming to have complied by taking the roadside breath test would lead to the offence since this has been held to be a preliminary test only.
Reasonable excuse for not providing a sample could be put forward as a defence. However it should be noted that the Court of Appeal have stated that an excuse is only reasonable if a person is physically or mentally unable to provide a sample or there would be a substantial risk to health if the sample was taken. Reasonable excuse does not cover the scenario where a person had not consumed any alcohol at all or had drunk it after driving.
The maximum penalty will vary depending on whether the defendant was driving or in charge of the motor vehicle which led to the request for the sample. If driving or attempting to drive the maximum sentence is a level 5 fine (up to £ 5000), 6 months imprisonment, disqualification for at least one year unless special reasons and licence endorsed unless special reasons. There may also be an order to take a driving test again. If the offence is committed within 10 years of a similar conviction or drink driving related conviction then the disqualification must be for at least 3 years.
If in charge of a motor vehicle the maximum sentence is a level 4 fine (up to £2,500) and 3 months imprisonment, discretionary disqualification for any period and/or until a driving test is passed and licence endorsed unless special reasons.