Is Failing to Provide a Specimen a Criminal Offence?

When stopped by the police while driving, you will usually be asked to take a roadside test, such as a breathalyser, to determine whether there are drugs or alcohol in your system. This will happen whether or not you have been stopped on suspicion of drink or drug driving. If any prohibited substances are found in your system during a preliminary test, which can include everything from illegal drugs to certain prescription medications, you will be arrested and taken to a police station to give further samples.

The purpose of these tests is to determine whether alcohol or drugs were responsible for your driving behaviour and, if so, to gather evidence that can be used to prosecute you for a drink driving or drug driving offence. As such, some drivers believe that refusing to submit to these tests or to provide a specimen when asked is the best way to avoid charges.

Unfortunately, the opposite is true. Unless you have a reasonable excuse to refuse, of which there are a limited number, a person who fails to provide a specimen (such as a breath, blood or urine sample) when requested is guilty of an offence. The penalties when a person fails to provide a sample are equivalent to those that would apply if they had been found guilty of driving above the legal limit, in many cases.

Here, the specialist motoring offence solicitors at JMW outline what happens if you fail to provide a specimen, some of the reasonable grounds to refuse, and when to seek legal advice to avoid prosecution.

What is the offence of failing to provide a specimen?

Under the Road Traffic Act 1988, it is a criminal offence to refuse or fail to provide a specimen for analysis without a reasonable excuse. Police officers can require a specimen if they have a reasonable suspicion that a person was driving, attempting to drive, or being in charge of a motor vehicle while under the influence of alcohol or drugs.

You can be charged with failing to provide a specimen at either the roadside test stage, where the police may ask for a breath test, or for refusing to give an evidential specimen of breath, blood or urine at a police station (or the hospital).

Failing to provide an evidential sample at the second stage is considered more serious, as this specimen is the one that would be used to charge you with an offence of driving under the influence of drugs or alcohol. However, refusal to comply at either stage can lead to prosecution. With that said, the law outlines some "reasonable excuses" for specimen failure that drivers may rely on as a defence under the right circumstances.

What are the potential consequences?

Failing to provide a specimen for analysis without reasonable excuse is a criminal offence that comes with several potential penalties, ranging from a fine, to a driving ban, to a custodial sentence in the most serious circumstances. The penalty you will receive for a failure to provide a specimen depends on the specific charge you receive, the reason for which you were stopped in the first place, and any mitigating circumstances your solicitor can present in your favour.

Refusing to provide a specimen when you were driving or attempting to drive carries the same maximum penalties as a drink driving conviction, which include:

• A minimum 12-month driving disqualification.
• An unlimited fine.
• Up to 6 months’ imprisonment.
• A possible community order.

You may need to retake your driving test or take an extended driving test in certain circumstances. It is important to remember that these are only the penalties for not providing a specimen. If you were stopped by the police for other reasons - such as for careless or dangerous driving - you may be charged and receive further penalties for these offences in addition to your failure to provide a specimen in a drink or drug test. This could include an extended prison sentence, a minimum driving ban and a larger fine. The courts often view a refusal to cooperate as more serious than providing a positive sample, as it may be seen as an attempt to obstruct justice, and Magistrates are less lenient when sentencing.

Beyond the legal penalties, a conviction for failing to provide a specimen results in a criminal record and can have long-lasting effects in other areas of your life. Car insurance premiums are likely to increase, and jobs that require driving, or those that involve responsibility or security clearance, may be affected. Some countries refuse entry to those with drink or drug-related convictions, which could affect travel plans.

As such, if you are asked for a sample, you should provide one unless one of the "reasonable excuses" listed below applies to your circumstances. It is also extremely important to speak to a solicitor at your earliest opportunity, to start building your defence.

What counts as a ‘reasonable excuse’?

The law allows for exceptions in limited circumstances, usually related to medical conditions that would prevent someone from giving a specimen. A reasonable excuse must be genuine and supported by medical records or expert evidence to avoid a charge of failure to provide a specimen. Some of the most common circumstances that would be accepted as reasonable excuses are:

• A diagnosed respiratory condition (such as asthma) that prevents someone from giving a breath sample.
• A severe mental health condition that impairs understanding or cooperation.
• Physical or psychological trauma caused by an accident.
• The police failed to follow the correct procedures when requesting the sample.

Misunderstanding the law, refusing out of fear, or hoping to avoid a conviction do not amount to reasonable excuses - only a genuine medical reason or errors in police procedures are usually accepted. A solicitor can advise you on your position and help you to secure relevant medical evidence that will support your defence.

Are other defences available?

You may be charged with failing to provide a specimen if a police officer made a lawful request for a specimen and you understood what was required, but you refused to cooperate without a valid reason or excuse as listed above. It is possible to defend yourself in some such cases, but the burden of proof shifts to the defence to present credible evidence of any medical or legal justification for your failure to comply.

As such, if you have been charged with failing to provide a specimen, you should seek legal advice immediately. The circumstances surrounding the request, the way in which it was made, and any possible medical defences must all be considered carefully, as the penalties are severe, and the courts have limited sympathy for those who decline to engage with the process without good reason. At JMW, we can examine the situation in more detail and advise you on possible defences.

For example, as we have noted, there are strict procedural requirements that the police must follow when suspects provide specimens, and any mistakes in this process can create reasonable doubts about the legitimacy of evidence. For example, the police must take two samples, and give one to the suspect that can be tested by an independent party. This can be used to challenge a false positive result, but if the police fail to give you your sample, this may prevent a fair trial and lead to charges being overturned.