When can the police ask for a specimen?
An officer in uniform can ask you to give a breath test or mouth swab if s/he:
- Has reasonable grounds to suspect that you have or are committing a road traffic offence.
- Has reasonable ground to suspect that whilst either driving, attempting to drive or whilst in charge of the vehicle you have consumed alcohol or illegal drugs.
How is a roadside sample taken?
A roadside breath test is given by blowing in to a machine which is a preliminary test for alcohol. The test does not measure the amount of alcohol in your system. If the test is positive, you will be arrested and taken to the police station for a further breath test on a machine that will provide a measurement of how far over the limit you are.
If you are suspected of driving whilst under the influence of illegal drugs, police may conduct a ‘field impairment test’. This may involve walking in a straight line for example. They can also use a roadside drug kit to screen you for cannabis or cocaine. If you fail this test you will be arrested and will have to take a blood test at the police station.
Can I refuse to provide a sample?
If you fail to provide a sample without a reasonable excuse you will be committing an offence of failing to provide a specimen. It is not a defence to say you were under the legal limit for alcohol or drugs!
Will I be arrested?
If you refuse or fail to provide a sample at the roadside you will be arrested. You will be taken to police custody where you will be booked in, and required to provide a more comprehensive sample before being placed in a cell to await the decision as to whether you will be charged to attend court.
Can I delay the test until I have spoken to my solicitor?
No. If you insist on doing so it is likely you will be charged with failing to provide a specimen.
Giving a sample at the police station
In the case of alcohol, the police will usually ask for a breath sample, but may in some circumstances ask for blood or urine. If the police ask for a breath sample you will be asked to blow in to a machine approved by the secretary of state which analyses the level of alcohol in your breath and gives a print off of the results of two readings. The police will use the lowest reading to determine the level of alcohol. If your reading is 50 or less (the legal limit being 35) you are entitled to ask for a sample of blood or urine to be taken for analysis.
If you refuse to provide a sample, or fail to provide two clear readings without a reasonable excuse, you will have committed the offence of failing to provide a sample.
If you are asked to give a blood sample, whether it be in relation to alcohol or drugs, then this will be taken by a doctor. If you refuse to give blood without a reasonable excuse, you will have committed the offence of failing to provide a sample.
If you have a genuine medical reason why you cannot provide a sample or breath, blood or urine, you should tell the police immediately.
What happens next?
If you are charged with failing to provide a specimen you will be given a time and date to attend the Magistrates’ court. Failing to provide a specimen is taken as seriously as driving whilst under the influence or alcohol or drugs.
Are there any defences available?
It is a defence to state that you had a “reasonable excuse” for failing to provide a specimen. If your reasonable excuse is based on medical evidence, for example if asthma prevented you from blowing, you will need medical evidence to support this defence. Once such a defence has been raised, the onus is on the prosecution to disprove it.
In some cases you may also be able to argue the police did not follow procedures correctly or that the testing equipment was not working.
What is the penalty for failing to provide a sample?
The penalty for failing to provide a sample will vary depending on whether you were driving the vehicle or in charge of it.
If convicted of failing to provide a specimen after driving a vehicle, the sentencing range is a fine through to 6 months imprisonment. The sentence depends on several factors, including the standard of driving and whether your inability to provide a specimen was deliberate. You will also be disqualified from driving for between 12 months and 36 months. If you have previously been convicted of a relevant driving offence within the preceding ten years, you will be disqualified for between 36 and 60 months.
If convicted of failing to provide a specimen after being in charge of a vehicle, the sentencing range is a fine through to 3 months imprisonment. Your licence will be endorsed with a minimum of 10 points or you could be disqualified for up to 12 months.