Failure To Provide A Specimen

What is the Offence of Failure To Provide A Specimen

Failure to provide a specimen is an offence in terms of section 7(6) of the Road Traffic Act 1988. The offence is committed when:

• at a police station (or hospital), a person is required by a police officer to provide a specimen of breath, blood or urine;
• the person either refuses or fails to provide same;
• and does not have a reasonable excuse for the refusal or failure

It does not matter whether the person has actually been drinking or not.

Penalties for Failure to Provide a Specimen

A conviction for failure to provide a specimen is seen as a serious offence and can have severe consequences. The penalty is at least as severe as those for drink driving and, in most cases, will attract a longer disqualification. This is because courts often infer a nefarious reason lies behind the failure. It is competent, however, for an offender to be certified as suitable for the drink drive rehabilitation scheme even although the offence is not one of drink driving.

Common Penalties Are:

• Mandatory Driving Disqualification: A minimum ban of 12 months is given for a first offence with longer bans being commonplace. This is increased to a minimum of 3 years for a second offence within a 10-year period. It is possible to reduce the length of the ban by up to 25% by participation in the Drink Drive Rehabilitation Course
• Financial Penalty: A fine of up to £5,000 can be imposed.
• Imprisonment: a prison sentence of up to 6 months is possible.
• Vehicle Forfeiture: Your vehicle may be sought for seizure and destruction by the Crown in cases where the reading is particularly high or repeat offences
• Criminal Record: A criminal record will be given as a result of a conviction, which can affect future employment, travel, and insurance costs

Sources:

• Road Traffic (Offenders) Act 1988, section 33A
• Road Traffic (Offenders) Act 1988, section 34
• Road Traffic (Offenders) Act 1988, section 34A

How Long Will I Be Disqualified For If I’m Convicted of Failure To Provide a Specimen?

Failure to provide a specimen carries a minimum disqualification of 12 months. The court can – and often does – impose a longer disqualification if it considers that the circumstances and/or the record of the accused merit it.

Source:

• Section 34 of the Road Traffic (Offenders) Act 1988

Factors which may increase the length of the disqualification include:

• evidence of a high level of intoxication
• any aggravating features such as evidence of poor driving even if no separate driving offence has been libelled
• the record of the accused, including but not necessarily limited to previous drink-driving offences

The Importance of Discount

In all cases an early plea of Guilty will attract a discount to the length of disqualification and accompanying penalty. Furthermore, if the court can be persuaded to allow the offender to participate in the drink drive rehabilitation scheme, the period of disqualification can be reduced by a further 25%. Discount can therefore have a significant effect on the length of disqualification. And. because the court will often select a starting point significantly in excess of the minimum, discount can be crucial.

Example:

• An offender pleads Guilty at the earliest opportunity
• The Sheriff selects a “starting point” of 24 months disqualification
• A one-third discount reduces this to 16 months
• Successful participation in the drink drive rehabilitation course means a further 4 month reduction
• “End point” disqualification of 12 months

Case Law:

• Gemmell and Others v HMA 2011 HCJAC 129: amongst other things, determined that discount should apply to “driving” penalties such as the amount of penalty points or the length of the disqualification. Prior to Gemmell, the discount did not apply to the driving penalty. The discount cannot result in less than 12 months disqualification being imposed.
• Little v Procurator Fiscal Paisley 2019 SAC (Crim) 15: for a first offender there is a presumption in favour of certifying the offender as suitable for the drink drive rehabilitation course

For more information on these points, see our dedicated blog:

• Drink driving sentences in Scotland – recent developments and what to expect in terms of disqualification

Potential Defences

Failure to provide a specimen can be challenging to defend. Certain “common sense” issues simply do not amount to defences. It does not matter whether the person has actually been drinking. It does not even matter if the person has even been driving (although that can be very relevant to sentence). There are two main defences to failure to provide a specimen – Statutory Failings on the part of the police and Reasonable Excuse.

Statutory Failures

Explanation: there are strict rules which exist to protect the motorist. First, the police must warn the suspect that failure or refusal is an offence. Second, in cases of blood or urine, these can only be required in certain circumstances. Third, if the suspect is in hospital, strict rules must be followed.

Defence: Failure to adhere to any of the above can mean that the case is successfully defended. Furthermore there is an overarching requirement that the procedure is conducted fairly.

Reasonable Excuse

Explanation: if the accused had a reasonable excuse for failure to provide a specimen then that is a complete defence. This is not a statutory defence. It is for the prosecution to prove, beyond reasonable doubt, the absence of reasonable excuse.

Defence: the defence relates to either a physical or mental inability to provide a specimen. Simply trying your best and failing is generally not a defence (although it should be). Typical examples will include an inability to provide a specimen of breath due to asthma or inability to provide a specimen of blood due to an overwhelming needle phobia. Supporting medical evidence will be all-but required in most cases and careful preparation is essential.

Why Instruct Us?

Reason 1 – We Are The Pioneers

Since our inception in 2001, when our founder Graham Walker (pictured) identified a critical gap in the Scottish legal market, we have pioneered how to defend charges of this nature. Other firms also claim this. But see when the domain was registered to see how long the firm have actually been online. Our domain was registered in 2001. We believe we were registered years in advance of any rival firm. We are invited, founder members of the Association of Motor Offence Lawyers. Graham’s founding principles of specialisation, expertise, communication and client dedication remain central to the firm and to the defence of your case.

Reason 2 – Our Statistics 

We base our success rate on 1000 independently analysed cases chosen at random. Other firms may claim even higher success rates but do not simply accept them at face value. Ask them what their case sample size was. How do they define case success? We have successfully defended sports stars, famous personalities, peers of the realm, members of the Royal Family, fellow solicitors, advocates, leading QCs and police officers. We do not name names unless the case is already in the public domain but you can see some of our reported cases here.  As we helped them, so we can help you.

Reason 3 – Our Independent Reviews

All of our quoted reviews are reviews posted on independent review sites such as Trustpilot and Review Solicitors. See our dedicated Reviews Section:

Our Independent Reviews

Reason 4 – Our Fixed Fee

We guarantee a Fixed Fee. It does not change no matter how often we need to attend court. There is no small print. There are no hidden costs.

Reason 5 – Nationwide Representation 

Although our offices are in Glasgow, we regularly defend motorists in every Court in Scotland. On any given month, our solicitors appear in courts across the country, including Aberdeen, Dumfries, Edinburgh and Paisley. Wherever your case is being heard, we have the experience and resources to represent you effectively.

 Call: 0800 048 8696

I refused to provide a specimen because I had not been drinking

This is not a defence and serves only as mitigation. No matter how affronted you are at the police, you should comply.

I refused a specimen because I had not been driving nor attempting to drive

Again, this is not a defence as ridiculous as that may be. It can be, however, possible to avoid disqualification in these circumstances.

I tried my best but, no matter what, the machine would not register a reading

The EC/IR Intoximeter machine uses a mouthpiece with a one-way valve. if it is inserted the wrong way round (and both ends look similar), this could amount to a defence to the charge. In practice this is very difficult to establish, especially if the police evidence is that you were deliberately frustrating the procedure

Call: 0800 048 8696