Failure to Provide a Specimen

Are you looking for the best Road Traffic Solicitors to defend you on a charge of Failing to Provide a Specimen of Breath, Blood or Urine?

When it comes to protecting your driving licence, we understand the potentially devastating impact of a road traffic charge on the reputation, livelihood and liberty of those we represent.

So, if you’re facing what for you is the legal minefield of being charged with failing to provide a specimen, tip the scales in your favour - Get in touch now.

What is the law on Failing to Provide a Specimen?

Under sections 6 & 7 of the Road Traffic Act 1988, it is an offence if a person fails - or refuses - to provide a specimen of breath, blood or urine when lawfully required to do so, unless that person has a reasonable excuse for any such failure.

Charges of this type will tpyically arise from two separate stages of the police investigation: firstly, from police requiring a specimen prior to arrival at a police station – often referred to as the ‘Preliminary’ or ‘Roadside’ test; and, secondly, relating to a failure to provide a specimen at the police station – the police station test.

Failing to Cooperate with a Preliminary or Roadside Test under Section 6

This is the first stage in police investigating whether a person is over the legal limit for alcohol or under the influence of drink or drugs. In particular, a police officer can require a person to cooperate with this preliminary test if the officer reasonably suspects or believes that the person is - or has been - driving, attempting to drive or in charge of a vehicle in one of the following scenarios:

• whilst under the influence of alcohol or a drug;
• when the driver has committed a moving traffic offence; or
• when an accident has occurred owing to the presence on the road of the vehicle in question.

This preliminary test will normally mean being required by police to provide a specimen of breath by means of a handheld electronic device, though might in certain circumstances, involve other investigations, such as being required to walk in a straight line to assess impairment or being required to provide a sample of sweat or saliva to test for drugs.

If a person fails the preliminary test or refuses to cooperate, they will be arrested and  charged under Section 6 of the Road Traffic Act 1988. They will also be taken to a police station where they can expect police to make further requirements to provide a specimen, as part of what is the second stage of the police investigation, under section 7 of the Road Traffic Act - explained in more detail further down this page.

What are the penalties for failing to cooperate with the Roadside Test?

If convicted of failing to provide a specimen under section 6, the consequences for you – and your family - can be severe and long-lasting.

In particular, the court will normally exercise its discretion to disqualify from driving, though, as road traffic specialists, you can count on us to assess whether yours is a case where the court might be persuaded not to disqualify and, instead, to opt for the alternative of 4 penalty points.

Failing to Provide Specimens for Analysis under Section 7

Under section 7 of the Road Traffic Act 1988, failing – or refusing – to provide a specimen of breath, blood or urine at a police station required is an offence. This requirement to provide a specimen at the police station usually takes place because a person has failed  an earlier preliminary roadside test – though there does not need to have been a previous preliminary roadside test for police to require specimens at the police station.

The requirement is normally made at a police station, though can also be made at a hospital, for example, where the driving has involved an accident which has resulted in the suspected driver requiring treatment in hospital.

What are the penalties for failing to provide a specimen under section 7?

If convicted of failing to provide a specimen at a police station, the consequences for you – and your family - can be severe and long-lasting.

In particular, the offence carries a minimum driving ban of one year. However, the courts often take the view that a person who has failed to provide a specimen at the police station has prevented an accurate measurement or assessment of the alcohol in their system. On that basis, it’s not unusual for the courts to disqualify for longer than the one year minimum period. Further, in deciding on the period of disqualification, the courts are likely to take into account factors, such as the manner of driving and the age and type of any previous road traffic convictions. Indeed, if a person has a previous drink-related conviction within the past 10 years, the minimum period of disqualification rises from 1 year to 3 years.

The court will also usually impose a significant financial penalty, and in the most serious cases, the court may consider a custodial sentence or an alternative to custody such as unpaid work in the community or a Restriction of Liberty Order (electronic tag).

Again, therefore, given the potential consequences of a drink driving conviction for your licence, your job and, of course, your family, it makes sense to obtain early expert guidance on what can properly be done to avoid or reduce the penalties in your case.

How can we help with charges of Failing to Provide a Specimen?

Whether the charge is under section 6 (roadside) or section 7 (police station), you can count on our award-winning team to identify the right questions, provide the right answers and deliver the best solutions.

Here are just some of the ways in which we can help:

• Flaws in prosecution case? Are there any grounds - technical or otherwise – to contest the charge against you? For example, did police warn you that failure to provide a specimen may render you liable to prosecution? Do the forms completed by officers at the police station point to any failures to follow essential or proper procedure? Do the printouts or logs for the ‘Intoximeter’ or other breathalyser device suggest that the device was not functioning properly?  
• ‘Reasonable Excuse’ defence? If you had what the law calls a ‘reasonable excuse’ for failing or refusing to provide a specimen, then this would be a complete defence which would entitle you to be acquitted. For example, is yours a case where police failed to provide you with proper instructions on how to provide a specimen via the breathalyser? Or were violent towards you? Were you genuinely unable to provide a specimen because of a physical or mental issue, such as a chest injury, asthma, or extreme psychological condition?  If so, we have the know-how to properly investigate any such line of defence and, in particular, to enlist the help of the relevant forensic experts needed to assess any such cases.
• Were you ‘in charge’ as opposed to driving? Can the prosecutor or court be persuaded that the evidence in your case points to you having been ‘in charge’ or control of the vehicle when stationary, rather than the vehicle having been driven or moved? If so, failing to provide a specimen after having been ‘in charge’ of a vehicle – as opposed to driving that vehicle – would mean that the court would no longer be bound to impose a minimum one year ban and it would instead be possible to ask the court to deal with your case by way of a shorter ban or even simply 10 penalty points.
• Minimising driving ban? If you are considering a full or partial plea of guilty, you can count on our considerable forensic and tactical skills to negotiate the best possible plea with the prosecutor, to present the best possible case to the court and to secure for you the lowest possible penalty.  For example, if because of the circumstances of your case, the court is considering a driving ban longer than the minimum one year period, then there may be a legal basis to ask the court to “discount” or reduce any such longer ban, in particular, to give you credit if your plea of guilty is tendered early in the proceedings.           
• Further, when the court has decided on the appropriate length of ban in your case, it may also be possible to persuade the court to reduce the period of that ban by a further 25%, if you agree to participate at a future date in what is known as the ‘drink drive rehabilitation scheme’, the purpose of which is to educate about the risks of drink-driving and thereby reduce those risks for the future.

What are the costs?

Firstly, given the importance of you finding exactly the right lawyer to protect your driving licence, we have the confidence to provide every client with a first, diagnostic consultation, free of charge.

Thereafter, depending upon your financial position and the nature of your case, it may be possible for us to represent you under the Scottish Legal Aid scheme. If, however, Legal Aid is not available or appropriate in your case, whilst any fee chargeable thereafter will depend upon the complexity of your case, we are always happy to provide you with the certainty of a fee agreed in advance, and, if you prefer, usually the reassurance of a fixed fee arrangement, rather than fees based upon each item of work.

Equally, if you have a motor insurance policy or house insurance policy which provides you with cover for the legal costs of defending a motoring prosecution in Scotland, we would always be content to discuss acting for you on this basis. If you are in any doubt as to the terms of cover under any such insurance policy, again, we would be happy to examine the terms of any such policy at your first free consultation.

To tip the scales in your favour, get in touch now.

So, once again, why choose Adams Whyte Road Traffic Solicitors to defend you?

Here are just 5 reasons:

• We are already the trusted choice of thousands of clients who over the years have relied on the expertise of our motoring law solicitors to deliver for them the best possible result in road traffic cases right across the country.
• For the countless clients who, year after year, choose us to protect their driving licence, we have an impressively high rate of success and satisfaction.
• Those who recommend or instruct us include individuals from fields as varied as law and policing, to medicine and banking, to sport and entertainment.
• In fighting to keep you on the road, our specialist solicitors provide the highest standards of technical knowledge, forensic analysis, and courtroom advocacy, for example in exposing and arguing against any technical or legal flaws in the case against you.
• Given the importance of you finding the right lawyer to protect your driving licence, we have the confidence to provide every client with a first, diagnostic consultation, free of charge.

Failing to provide charges are technical, complex and serious. It, therefore, makes sense to protect your licence by obtaining early expert advice as to what can be done in your case.

To give yourself the best chance of the best outcome, get in touch now.