Refusing to provide a specimen

Failing to provide a specimen when required by the police is a serious matter under the law of England and Wales. Here is the legal position and the practical consequences.

Legal framework:

The key provisions are found in sections 6 to 11 of the Road Traffic Act 1988, together with section 7(6) which creates the specific offence of failing to provide a specimen.

The offence:

Under section 7(6) of the Road Traffic Act 1988, it is an offence to fail without reasonable excuse to provide a specimen when required to do so under section 7. This applies to specimens of breath, blood, or urine required for analysis at a police station or hospital. There is a separate offence under section 6(6) for failing to provide a preliminary breath test at the roadside.

What counts as a failure:

A failure includes a straightforward refusal, but it also covers providing an insufficient sample or failing to follow the proper procedure for providing the specimen. The police officer should give a clear warning that failure to provide may result in prosecution. Two specimens of breath are normally required on an evidential breath testing device, and failing to provide either one can amount to an offence.

Reasonable excuse:

The only defence is that you had a reasonable excuse. This is interpreted quite narrowly by the courts. A genuine physical or mental condition that makes it impossible to provide the sample can amount to a reasonable excuse. Examples might include a verified medical condition affecting breathing capacity, or a genuine needle phobia supported by medical evidence in the case of a blood sample. Simply being nervous, uncooperative, or claiming you tried but could not manage it is unlikely to succeed without medical evidence. The burden of raising the reasonable excuse falls on the defendant, though the prosecution must then disprove it to the criminal standard.

Penalties:

The penalties for failing to provide a specimen are broadly the same as for drink driving. For the section 7(6) offence where the specimen was required in the course of an investigation into driving or attempting to drive, the maximum penalty is six months imprisonment, an unlimited fine, and a mandatory disqualification from driving for at least 12 months. The minimum disqualification rises to 36 months if you have a relevant previous conviction within the preceding 10 years. For the lesser category, where the requirement related to being in charge of a vehicle rather than driving, the maximum is three months imprisonment, an unlimited fine, and a discretionary disqualification with 10 penalty points as an alternative.

The offence also results in a criminal record and can have significant consequences for insurance, employment, and travel.

Practical points:

1. Courts tend to take a dim view of failures to provide, partly because it can look like the person was trying to avoid providing evidence of a very high reading.

2. If you have a genuine medical condition that prevents you providing a particular type of specimen, tell the police at the time and ask for it to be noted. A medical practitioner at the station can advise whether the condition is genuine. You should also request that an alternative type of specimen be taken where possible.

3. If you are charged with this offence, the defence case will usually need to focus on whether the correct procedure was followed by the police, whether a proper warning was given, or whether there was a genuine reasonable excuse supported by medical evidence.

4. Sentencing is guided by the Sentencing Council guidelines. The court will consider the level of impairment, the reason for the failure, and any aggravating or mitigating factors.

5. An acquittal on a drink driving charge does not necessarily follow from a conviction for failing to provide, and vice versa. They are separate offences.

Key point to remember:

The law essentially treats a refusal or failure to provide a specimen as equivalent to being over the limit. The rationale is that allowing people to avoid prosecution by simply refusing to blow would completely undermine the drink and drug driving regime. For this reason, the courts are generally unsympathetic to creative excuses and will expect solid evidence of a genuine inability to comply.