Breath

Failing to provide a specimen is a serious criminal offence. You should seek immediate legal advice and consider all available defences. If you would like to discuss your case, please call a member of our team.

We can help you with:

  • Discussing your options
  • Reviewing the evidence
  • Identifying defences
  • Next steps

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Failing to Provide a Specimen of Breath

What you need to know.


Failing to provide a sample (FTP) is not the same as drink driving. If you have been charged with FTP the police do not have to prove that you were over the drink drive limit. FTP is an unusual offence because it takes place at the police station in front of the officers. Failing to provide a sample on the large evidential machine is a criminal offence. But, like every criminal offence, it can be defended. 

Police Station Procedure

There are two different types of FTP offence. The first is where the suspect genuinely tries to provide a sample at the police station (they may make a number of attempts to blow into the machine). Despite their best efforts, they fail. The second type of offence is where the suspect point-blank refuses to provide a sample. This may be because the suspect feels hard-done-by or perhaps because they weren't driving the vehicle. In these circumstances you may not even be taken into the breath test room.

If you did try to provide a sample of breath in police custody, it is important to understand why you failed. The evidential breath testing machines currently in use across England and Wales are around 15 years old. They look more like 1980's fax machines than high-tech analytical devices! Due to their age, they are very demanding in terms of breath volume and the strength at which you have the blow.

Some people have reduced lung capacity and may not realise. Others may experience shortness of breath in highly stressful environments. There is a 'knack' to providing samples of breath and not everyone can get the hang it. This should not mean you lose your licence.

Every defendant has the right to check the evidence against them. This is a fundamental right afforded to any person accused of having committed a criminal offence. One of the most important pieces of evidence in a FTP case is the breath machine mouthpiece. If you attempted to blow into the machine but couldn't produce a sample, it may have been because the mouthpiece was blocked, defective, or in some way faulty. Whatever the reason, it is strategically beneficial to ask the CPS to produce the mouthpiece, simply because they probably don't have it. Remember that in drink driving cases there is no duty on the police to retain the mouthpiece - hence why it's often thrown away. Fast forward to your court hearing and the CPS cannot prove that the mouthpiece was unobstructed. Case closed.   

Of course, if you made no attempt to blow into the machine then the issue relating to the mouthpiece is not relevant. What may be relevant, however, is the MGDDA procedure. See below.  

 

Whatever the scenario, it is extremely important to understand the options open to you. Don't feel pressured into pleading guilty. We regularly win FTP cases due to mistakes made by the police or CPS. If we can win your case, you will not be disqualified.

 The MGDDA Procedure

You can read more about the MGDDA procedure on our drink driving page. Whether you attempted to provide a sample or not, this document has to be completed correctly by the officer. The reason for this relates to your statutory rights in police custody and, in particular, the right against self-incrimination. This is a long-standing principle in English Criminal Law. If you provide a sample of breath and it's positive, you're charged and sent to court. If you fail to provide a sample without reasonable excuse, you're charged and sent to court. Either way, you face a long disqualification. But what if the police procedure was incorrect? 

The Road Traffic Act compels a police officer to warn a suspect that they would be charged with FTP if they fail or refuse to provide a sample. The reason you must be told this is because FTP is one of only a handful of offences that can be committed by omission (i.e. by doing nothing). In additional to this, you must also be legally required by the police officer to provide a sample. This legal requirement is contained within the MGDDA document and must be read correctly.  

The whole process usually takes 30 - 40 minutes. If you think this didn't happen to you, please get in touch and we'll explain what to do next. 

Should I have been offered a blood or urine sample? 

A common question asked is whether a suspect should have been offered the opportunity to provide a blood or urine sample instead of breath. In most cases, the answer is no. 

Under Section 7(3) Road Traffic Act 1988 a suspect can provide a sample of blood in police custody if;

  1. The breath testing machine has produced an inaccurate reading
  2. A machine is not available for use
  3. The suspect has a medical reason why a breath sample cannot be given 

Very rarely do points one or two, above, apply. In most cases, if a suspect believes they should have been offered the option of blood or urine, it's usually because they believe they were not capable of providing a breath sample. Where a suspect raises a medical reason, it is good practice for the custody nurse to examine the suspect and assess the validity of those claims. How is a police officer supposed to know if you're medically unable to provide a sample, particularly if that medical condition is not visible? If you were not seen by the custody nurse as part of the procedure, you may have a strong defence. 

The police do have some discretion to allow a suspect to provide a blood or urine sample. An experienced police officer should realise that there is no harm caused by allowing a suspect ti give blood or urine. Both can be tested for alcohol and if the suspect if found to be over, they can be charged. 

It is possible that you were entitled to give a blood or urine sample in police custody. There are five reasons why the police prefer not to take blood or urine; 

  1. It's a messy process (especially urine!). The samples have to be handled by the officer. They must be logged and stored correctly. 
  2. The delay in taking a sample. It takes, on average, one hour for a Medical Practitioner to get the station. During which time your alcohol levels will drop. 
  3. The cost involved in analysing a sample. It is very expensive to analyse blood and urine samples. It is free to take a sample of breath.  
  4. The additional paperwork. In additional to the MGDDA document, the officer must also complete a second booklet, known as an MGDDB document when taking blood or urine. This procedure is a complete minefield. 
  5. The time taken for results. Blood and urine samples taken 4 - 5 months to analyse. The police cannot charge a suspect until the results arrive. 

It is for these reasons why the police may not correctly consider the option of blood or urine in police custody. It's must easier - and far less hassle - for a police officer to charge a suspect with FTP instead. If you were deprived of a right to provide an evidential sample of blood or urine you will have a defence. 

 


Reasonable Excuse (defence)

A 'reasonable excuse' is a reason, or excuse, as to why a sample was not given. If the court finds that the excuse was reasonable, you would not be convicted. 

Failing to provide a sample is only committed if a suspect fails "without reasonable excuse". Just because you've been charged with FTP does not mean that you did not have a reasonable excuse. You can still argue this defence even where it was not mentioned to the police at the time of the test. 

What amounts to a reasonable excuse

Below is a list of just some of the ways that this defence could be raised:

  • A physical injury (e.g. bruised or broken jaw, dental issue, etc)
  • Confusion, depression, anxiety, panic attacks etc... 
  • A blocked or defective intoxilyzer mouthpiece
  • A fault with the machine (even if not apparent at the police station)
  • A lack of understanding or a mental incapacity (even if ‘brought on’ by alcohol)
  • A refusal by the Sergeant to allow you to consult a solicitor 
  • A genuine phobia
  • A procedural error
  • A language barrier 

There’s a chance that you may have a reasonable excuse defence without knowing it. If you do, and your defence is successful, the court will not convict you.

There is little incentive in entering a guilty plea before you’ve had the opportunity to check the evidence against you. Your disqualification will not be reduced by entering an ‘early’ guilty plea.

Marcus Johnstone

 

Pleading ‘Not Guilty’ to Failing to Provide

Please don’t make the mistake of thinking that a disqualification will be reduced if you plead guilty at the first court hearing.

M.A.J. Law will be able to identify and develop a personalised defence strategy for your case, which is typically done before the first court hearing. This allows us to safeguard your position, and advise you in clear detail from the outset. Our team is made-up of senior solicitors, barristers and expert witnesses.

By pleading ‘not guilty’ to failing to provide, you force the CPS to prepare its case and present the evidence. Most prosecution areas have huge difficulties correctly preparing cases, warning witnesses and presenting evidence. This is mainly due to;

  • cuts in Government funding
  • an increased workload
  • the creation of new offences
  • miscommunication between the police and CPS

Whatever the reason, if the CPS fail to serve evidence, you should not be convicted.

Pleading ‘Guilty’ to Failing to Provide

The entire criminal justice system relies on guilty pleas. By pleading guilty, you are accepting that the entire police investigation – the collection & preservation of evidence – from start to finish was correct, without checking the evidence. So why would you? We’ve already established that the length of disqualification will not increase if later found guilty. In our view, there is far more to gain by exploring the technicalities of your case, and checking all evidence. You might be surprised to find that it doesn’t exist.

Even if you are still considering entering a guilty plea, M.A.J. Law can help. By highlighting recent case law, we may be able to convince the CPS to give you 10 points, rather than a mandatory disqualification. Whatever your decision, our team will use their expertise to secure the best possible outcome in your case.

Any initial advice we give is completely free of charge. You may also want to learn more about special reasons and mitigation, as they could be applicable in your case. Our team of specialist solicitors have the knowledge, experience and expertise to help you build a successful defence, and achieve the best possible result.

The Cost of Failing to Provide

M.A.J. Law are completely transparent about our fixed fee pricing structure and any potential costs that might be incurred throughout the case, so please don’t be afraid to ask. Our quoted fixed fees will not change, even if the case becomes more complicated than originally anticipated. Over the years, our team of specialist solicitors have built long-lasting, honest and trustworthy relationships with our clients. This has helped us become the leading motoring defence solicitors in the UK. M.A.J. Law also employs a number of Cost Recovery Administrators who will process your Defence Costs Order immediately. This allows you to claim back your costs from the Central Funds Office of the Government (subject to assessment).

What to do next

If you’ve been accused of failing to provide a specimen – whether one of blood, breath or urine – then your next step is to find the right legal team. There are a number of factors that can define what makes a solicitor ‘right’ for you, for instance:

  • A specialist in motoring law
  • In depth knowledge of drink & drug driving law
  • Experience & success in similar cases
  • Evidence of case victories & testimonials
  • Weekend availability
  • Connections with specialist barristers and expert witnesses
  • Fixed prices, and no initial charge for advice

If the solicitor you’re considering is lacking in any of the above areas, then it could be beneficial to explore other options.

*off all FTP cases that proceeded to trial in 2018

Could you benefit from expert advice?

M.A.J. Law’s specialist solicitors have years of experience representing clients in drink & drug driving cases across England and Wales. Get in touch today to discuss your case in detail

0151 422 8020