Failure to Provide a Specimen of Breath: Consequences, Defences, and Recent Statistics

This article explores the legal implications of failing to provide a specimen of breath in England, the consequences of such a refusal, potential defences, and the latest statistics on this offence. Understanding the law and your rights can help you navigate this difficult situation more effectively.

What Is Failure to Provide a Specimen of Breath?

Under English law, if a police officer suspects that a driver is over the legal alcohol limit, they can request a breath test to assess the driver’s blood alcohol concentration. Refusing to comply with this request, or failing to provide a sufficient breath sample without a valid reason, constitutes the offence of failing to provide a specimen of breath.

Typically, the police will ask for a breath sample at the roadside or at the police station. If the person refuses to give the sample, or fails to give a sufficient breath sample, they can be charged with this offence, which is treated with the same severity as drink driving under the law.

Legal Consequences of Failing to Provide a Specimen of Breath

Failing to provide a specimen of breath is a serious offence with significant consequences. The penalties can vary depending on the specifics of the case, but they are generally in line with the penalties for drink driving, which can include:

1. Driving Ban

A mandatory driving disqualification will almost always be imposed on individuals convicted of failing to provide a breath specimen. The driving ban typically ranges from 12 to 36 months, depending on whether it is a first offence or if the driver has prior convictions.

2. Fines

The offender may face a fine, which can vary based on the seriousness of the offence and the individual’s financial circumstances. Fines for this offence can range from several hundred pounds to £5,000.

3. Imprisonment

In more severe cases, such as when the individual has a prior conviction or behaves uncooperatively, a custodial sentence may be imposed. The maximum prison sentence for failing to provide a breath specimen is 6 months.

4. Criminal Record

A conviction for failing to provide a specimen of breath results in a criminal record, which can have lasting consequences, such as affecting future employment opportunities or the ability to travel to certain countries.

5. Community Orders

As an alternative to imprisonment, courts may impose a community order, which could include unpaid work, attending rehabilitation programmes, or complying with curfew restrictions.

Why Might Someone Fail to Provide a Specimen of Breath?

There are various reasons why an individual might fail to provide a breath sample. While some of these reasons might be legitimate, others are not considered valid under the law. Common reasons include:

1. Medical Conditions

Certain medical conditions, such as asthma or other respiratory issues, may make it difficult for someone to provide a sufficient breath sample. In these cases, the police may request an alternative sample, such as a blood or urine test. If a genuine medical condition prevents a person from giving a breath sample, this may be considered a valid defence.

2. Confusion or Misunderstanding

Some individuals may fail to provide a specimen because they do not fully understand the process or their legal obligations. However, courts are generally unsympathetic to this excuse, as police officers are required to clearly explain the consequences of refusing a breath test.

3. Fear of the Outcome

Drivers who believe they may be over the legal alcohol limit may refuse to provide a breath sample out of fear of being prosecuted for drink driving. Unfortunately, this approach can often result in more severe consequences than a drink driving conviction.

4. Deliberate Refusal

In some cases, individuals may deliberately refuse to cooperate with the breath test, either out of frustration or a misunderstanding of the law. Deliberate refusal is treated very seriously by the courts and usually results in severe penalties.

Recent Statistics on Failure to Provide a Specimen of Breath in England

The following statistics provide insight into the frequency and outcomes of cases involving failure to provide a specimen of breath in England:

• In 2022, approximately 82% of offenders convicted for failing to provide a breath specimen in England received immediate custody, illustrating the gravity with which courts view this offence.
• The average custodial sentence for failing to provide a specimen of breath in 2022 was 5 years 9 months. This highlights how seriously courts treat offenders who refuse to cooperate with police during drink driving investigations.
• Between 2005 and 2015, an average of 5,073 people were convicted each year of failing to provide a specimen for analysis. During that period:
  • 85% of offenders were male.
  • 63% were fined.
  • 22.5% were given a community order.
  • 6% received a suspended custodial sentence.
  • Nearly 5% received immediate custody.

These statistics demonstrate the serious consequences faced by individuals convicted of failing to provide a breath specimen, with many offenders receiving immediate custody and significant fines.

Valid Defences for Failing to Provide a Specimen of Breath

If you are charged with failing to provide a specimen of breath, certain defences may apply, depending on the circumstances of your case. The courts will consider whether there was a valid reason for the refusal, such as:

1. Medical Grounds

If you have a documented medical condition that made it impossible for you to provide a breath specimen, this can serve as a valid defence. Medical evidence, such as a doctor’s report, is required to substantiate this defence, and police may request alternative samples (blood or urine) if a breath sample cannot be given.

2. Faulty Equipment

In some cases, the breathalyser equipment used by the police may be faulty or malfunction, preventing the person from providing a sufficient sample. Proving that the equipment was faulty can be challenging, but it could form the basis of a defence if there is evidence of equipment failure.

3. Improper Police Procedure

If the police did not follow the correct procedure when requesting the breath specimen, this could form a defence. For example, if you were not properly informed of your rights or the consequences of refusing the test, the court may find that the charge should be dismissed.

How to Handle a Charge for Failing to Provide a Specimen of Breath

If you are charged with failing to provide a specimen of breath, it is essential to take the matter seriously and act quickly. Here are the steps to take:

1. Seek Legal Representation

Hiring a solicitor who specialises in motoring or drink driving offences is crucial. A solicitor can review the details of your case, advise you on potential defences, and represent you in court.

2. Gather Evidence

If you have a valid defence, such as a medical condition or improper police procedure, gather all relevant documentation, including medical records, witness statements, or evidence of equipment malfunction.

3. Attend Court

It is essential to attend all court hearings and comply with any court orders. Failing to appear in court can lead to further penalties, including fines or arrest.

Conclusion: Understanding the Consequences of Failing to Provide a Specimen of Breath in England

Failing to provide a specimen of breath when requested by police is a serious offence in England, carrying significant penalties, including driving bans, fines, imprisonment, and a criminal record. The courts treat this offence with severity, often imposing penalties comparable to those for drink driving.

Recent statistics show the high conviction rates and custodial sentences imposed for this offence, making it critical to understand your rights and obligations if you find yourself in such a situation. If charged with failing to provide a breath specimen, seeking legal advice immediately is essential to ensuring the best possible outcome for your case.