Failing To Provide A Specimen For Analysis

If the police have reasonable grounds to suspect that you were driving or in charge of a vehicle and you refuse or fail to provide a breath specimen when asked to do so by a police officer, either at the roadside or at the police station without good reason, you may be guilty of an offence unless you have a reasonable excuse.

The fact you were not driving does not mean that you can refuse to provide a sample, nor does it matter if you weren’t over the limit. A constable must be in uniform to require a person to co-operate with a preliminary test where he reasonably suspects that person to be driving or attempting to drive or in charge of a motor vehicle on a road or other public place with alcohol or a drug in his body or under the influence of drugs.

A constable has a similar power where the person has been driving or attempting to drive or in charge on a road or other public place while having alcohol or a drug in his body or while unfit to drive because of a drug and that person still has alcohol or a drug in his body or is still under the influence of a drug.

A constable may also require a preliminary test where he reasonably suspects that the motorist is or has been driving, attempting to drive or in charge on a road or other public place and has committed a traffic offence while the vehicle was in motion.

The sample taken at the roadside is just a preliminary test to see if you are over the limit, but If the police ask you to provide a breath sample, or sobriety/impairment test, or drug swipe test, at the roadside or the police station, and you fail to do so without reasonable excuse to co-operate with a preliminary test, when required to do so, it is an offence in itself and you may face charges.

A constable may make a requirement under s.7 RTA 1988 to provide specimens of breath only if the requirement is made at a police station or a hospital; where an accident occurs owing to the presence of a motor vehicle on a road or other public place, and a constable reasonably believes that the person was driving, attempting to drive or in charge of the vehicle at the time of the accident, or; the constable is in uniform.

Failure to provide the requested sample without good reason, reasonable excuse is an offence. If the provision of a specimen other than a specimen of breath is required, the question whether it is to be a specimen of blood or a specimen of urine and, in the case of a specimen of blood, the question who is to be asked to take it, shall be decided by the constable making the requirement.

It is at the officer’s discretion which sample is requested, you have no choice in which type of sample is taken, but if it is accepted, for whatever reason, that you cannot provide a breath sample, you will be asked to provide a sample of blood or urine.

A requirement to provide a specimen of blood or urine can only be made at a police station or at a hospital. It cannot be made at a police station unless the constable making the requirement has reasonable cause to believe that for medical reasons a specimen of breath cannot be provided or should not be required or; specimens of breath have not been provided elsewhere and at the time the requirement is made a device or a reliable device is not available at the police station or it is then for any other reason not practicable to use such a device, or; a device has been used at the police station or elsewhere but the constable who required the specimens of breath has reasonable cause to believe that the device has not produced a reliable indication of the proportion of alcohol in the breath of the person concerned, or; as a result of the administration of a preliminary drug test, the constable making the requirement has reasonable cause to believe that the person required to provide a specimen of blood or urine has a drug in his body, or; the suspected offence is one under s. 3A RTA 1988, s. 4 RTA 1988 or s. 5A RTA 1988 and the constable making the requirement has been advised by a medical practitioner or a registered health care professional that the condition of the person required to provide the specimen might be due to some drug.

Where a requirement to provide blood or urine applies the requirement may then be made notwithstanding that the person required to provide the specimen has already provided or been required to provide two specimens of breath.

A specimen of urine shall be provided within one hour of the requirement for its provision being made and after the provision of a previous specimen of urine.

You have to be warned that failing to provide a breath specimen or other sample is an offence. A constable must provide a warning on requiring a specimen that a failure to provide it may render him liable to prosecution and may arrest a person without warrant if the person fails to provide a specimen. Failure, without reasonable excuse, to provide a specimen when required is an offence however, if the warning is not given, then this may be a bar to conviction. 

Failing to provide a specimen is generally considered by the courts to be more serious than driving with excess alcohol or drugs.

A conviction for failing to provide a specimen for analysis, when suspected of driving, carries a mandatory driving disqualification of at least 12 months. If you have a previous conviction in the last ten years for a drink or drug driving offence, the minimum disqualification will be increased to three years. As well as receiving a driving ban you could also be fined, given a community order or even sentenced with up to 6 months in prison.

Failing to provide a specimen for analysis, when suspected of being in charge of a vehicle, could also result in you being disqualified, but depending on the facts, the court may impose ten penalty points. The maximum prison sentence for this offence is three months.

Defence of reasonable excuse

It is a question of fact as to whether a reasonable excuse exists, and the court must be satisfied beyond reasonable doubt that the defendant had no reasonable excuse but whether facts are capable of amounting to a reasonable excuse is a matter of law. Once such a defence is raised, the onus is upon the prosecution to negate it.

There are a number of circumstances, when a physical or mental inability to provide the specimen has been considered a 'reasonable excuse' by the courts for not providing a specimen, but clearly every case is fact specific. If reasonable excuse is raised as a defence, there must be a causative link between the physical or mental condition and the failure to provide the specimen.

Medical issues frequently arise, such as asthma in the case of a breath sample, or a prostate issue in the case of a urine sample, or a genuine phobia of needles in blood samples. Examples such as these are normally expected to be backed up by the opinion of a doctor or medical expert. Examples could also include anxiety or panic attacks.

A straightforward refusal, or not trying hard enough to blow, is not a reasonable excuse and normally constitutes a refusal and the offence of failing to provide a specimen of breath.

Other reasonable excuses may be found, but the taking of a sample cannot normally be delayed for you to be given legal advice.

Police officers must warn you that failure to provide a specimen might lead to prosecution – if this warning is not given, then it may be a reasonable excuse.

If you don’t have a reasonable excuse, then you may be prosecuted for failing to cooperate with a preliminary test; failing to provide an evidential specimen for analysis or; refusing permission for a laboratory test.