Drink Driving Breathalyser Tests & Evidential Specimens: Special Reasons for Committing the Offence of Refusing to Give a Sample
Someone who is stopped or arrested on suspicion of drink driving will be required to provide a breath or laboratory (urine or blood) specimen. Although there are rare occasions when someone may have a genuinely reasonable excuse as to why they cannot provide a specimen, for example on medical grounds, it is an offence for a person to refuse to give a specimen when asked to do so by a police officer.
The police officer will, or at least should, tell the accused person that a refusal to comply is an offence and ask them to give the specimen in any event. Should the accused continue to refuse, it will almost inevitably result in prosecution. This can result in a driving disqualification for a minimum of 12 months, which is the same as the minimum disqualification for a drink drive offence.
Unfortunately, not everyone is aware of the law, leading some people to say that they will only provide a specimen once they have spoken to their solicitor. This is not a defence. One of the reasons why the legislation has been drafted so strictly is to ensure that the police have sufficient evidence of the accused having consumed an excess of alcohol at the time that they were driving.
Here we provide an overview of the law relating to the offence of failing to comply with a request to provide an evidential specimen and a case study demonstrating how special reasons can be advanced to mitigate the consequences of committing the offence. At Tuckers Solicitors, our experienced road traffic defence team have extensive knowledge of the detailed technical laws relating to all manner of road traffic offences. You can find out more about our approach to defending drink driving offences here and failing to provide a specimen here.
Refusing to Give a Specimen – The Law & Special Reasons
The police have the right to request a sample from someone being investigated for committing a driving offence (section 7 of the Road Traffic Act 1988). A sample can either be a specimen of breath for analysis by means of a device, such as a breathalyser, or a specimen of blood or urine for a laboratory test. If that person, without a reasonable excuse, fails to comply with the request to give a specimen, they commit an offence (section 7(6) of the Road Traffic Act 1988).
Crucially, the right of police to request a sample applies ‘in the course of an investigation’. This means a person does not have to be stopped whilst driving or in charge of a vehicle – they can be required to give a specimen even if they are in their home or walking down the street and the officer has a reasonable belief that they have been driving. For example, if someone drives a vehicle home, consumes alcohol after having driven and then an officer arrives at their door, it is still legitimate for the officer to require a specimen of breath – and it is still an offence to refuse to give a specimen.
Where someone is guilty of the offence of failing to comply with a request to provide a specimen, it is possible to avoid disqualification or endorsement with penalty points by advancing special reasons. It is important to remember that special reasons follow a guilty plea and are not, therefore, a defence. It should also be borne in mind that special reasons arguments are distinct from mitigating circumstances/exceptional hardship arguments, which rely on the effect the disqualification will have on the offender and those around them.
Special reasons only relate to the offence at hand, not the offender. It is for this reason that the following are not considered special reasons: the fact that a defendant is, or was, of good character and had, prior to the incident, a good driving record; or, that their family, employees or others will suffer a personal financial hardship. Nor is it a special reason that the person who refused to give a sample, such as a doctor or other healthcare professional, was acting in the course of their profession and had the interests of the public at heart.
A special reasons argument usually requires a hearing with time specifically set aside for it. The Court will wish to know (and the prosecution should be notified) of any particular points of law which are argued. The defendant will also need to give evidence and establish his or her special reason based on the balance of probabilities. This is the civil standard of proof, which is a lower threshold than the criminal standard of beyond reasonable doubt and can, therefore, be more easily met. However, one has to look at what evidence the police have to suggest that you had been driving the vehicle in the first place.
C Refused to Provide a Breath Specimen – What Happened Next?
In Crown -v- C (North East England), our client, C, had consumed alcohol in the evening and during the course of the following day. Someone witnessed a vehicle being driven away from a property a few miles away from C’s home, believing the driver of the vehicle to be drunk and reported the matter to the police, quoting the vehicle’s registration number.
Police officers were alerted to the fact that a vehicle may be being driven on the road by a person who had consumed excess alcohol and checked their computer to find who the registered keeper of the vehicle was. As it transpired, the registered keeper was C.
The officers drove to C’s address and saw the vehicle parked on the driveway. The officers saw a person walking down the street who, for whatever reason, they believed was C, and indeed they were correct. They approached him and advised him that they had reasonable cause to believe that he had been driving the vehicle whilst having consumed excess alcohol. He was arrested and taken to the police station.
At the police Station, he was asked to provide a specimen of breath and refused to do so, stating that he had not driven the vehicle that day – it was his friend who had driven the vehicle with his permission. He was ignorant of the law and thought that because he had not driven the vehicle and not committed a crime of any sort, he had no reason to give a specimen. Of course, he was working under a misapprehension.
Although the refusal to provide a specimen of breath led our client to have committed an offence, a ‘special reasons’ argument was advanced on the his behalf, where he argued that he had not driven the vehicle that day. There was no evidence to suggest that our client had driven the vehicle: the person making the complaint about a drunk driver had not described our client, nor named him, but had only seen a vehicle being driven, in what they considered to be an erratic manner, and obtained the vehicle registration.
C’s special reasons were accepted and, needless to say, he was delighted with the result, as can be seen by his endorsement set out below.
“I recently faced receiving a lengthy driving ban and losing my business after I foolishly and naively failed to provide a specimen of breath with suspicion of having driven. This devastation was totally avoided when I took the decision to instruct Tuckers Solicitors. Myself and my family would hereby like to personally and sincerely thank Richard Egan of Tuckers for his strong traditional approach and exemplary all-round service in arguing special reasons and getting me just 5 points on my licence and a £250 fine. Total dream outcome! I cannot recommend Tuckers highly enough.”
There are other aspects of driving offences that can utilise special reasons, for example, being misled in relation to an insurance case, the shortness of the distance driven in a drink drive case and the unintentional commission of an offence, including ‘laced drinks’, to name but three.
The Court’s Powers
If the Court accepts special reasons, it may decide to disqualify for a shorter period than the minimum or not to disqualify at all and impose penalty points – as in C’s case.
However, it must be borne in mind that even if the Court accepts the special reasons argument, it is not bound to exercise its discretion not to disqualify, and even if it decides not to disqualify, the Magistrates can still impose between 3 and 11 penalty points.
This can mean that those who receive a further endorsement of penalty points after a special reasons finding may be subject to ‘totting up’. This is where a person gets 12 penalty points and faces disqualification. In these circumstances, it will only be possible to save their licence or to receive a shorter disqualification period than usual by arguing exceptional hardship.
Tuckers Expert Road Traffic & Driving Offences Defence Lawyers
Whether you have refused to provide a breath sample or you are accused of any other road traffic offence, depending on the circumstances of your case, we can help you advance an argument based on special reasons or exceptional hardship. The quality of our legal representation in road traffic matters can make the difference between disqualification and retaining the freedom to drive. Our specialist road traffic defence team have years of experience and an excellent success rate defending the complete range of road traffic and driving offences.
Our road traffic defence team are available 24/7, ready to provide expert and professional representation and defence. Please contact our expert road traffic team or contact Richard on 0771 112 9918 or at email@example.com.