Failing to provide a specimen - drink driving

Sentencing guidelines - failing to provide a specimen

For first time offences the Magistrate's Court will refer to the following guidelines:

Penalties for those who have a previous drink related driving conviction within the previous 10 years start at 36 months (3 years) and can go up to as much as 60 months (5 years).

Rather than simply blindly advising you to enter plea of guilty and looking at a damaged limitation approach, our experts at Stephensons have the knowledge and expertise to give you initial advice regarding any potential defences that may be available. It is not just a defence of ‘reasonable excuse’ that can lead to you being acquitted. There are a number of different issues to be considered that can eventually lead to you being acquitted:

The legal basis behind our defences

Reasonable excuse

The most common defence for failing to provide a specimen is one of a reasonable excuse due to a medical reason.

Some examples of medical reasons for why a specimen cannot be provided are:

Failing to provide - breath

• Asthma or other respiratory condition
• Anxiety or panic attack

Failing to provide - blood

• Needle phobia

Failing to provide - urine

• Urinary tract infection
• Prostate problems

By presenting proof of a medical condition together with the insight of a specialist expert to confirm that the condition is the reason for the failure to provide, we can convince the court that there was a ‘reasonable excuse’ for why you could not satisfy the requirements of the test. In those cases, you have to be acquitted.

Legal knowledge to find the ‘real issues’

It is not enough to raise an issue and then refuse to provide simply based on the raising of an unsubstantiated issue, there has to be a genuine medical basis behind the issue raised and in most cases you will have to make some attempt to provide that specimen in any event. However, when a medical reason is raised it is not acceptable for the police officer to dismiss the reason raised without further investigation. It can even be argued that is for a police station doctor or nurse to make a decision about a person’s medical condition if such an issue is raised. Cases such as Wade v DPP [1996] RTR 177), where the prosecution failed because the Police Constable in the case had failed to enquire further on the issue of 'taking tablets' as a medical reason for refusing to give a specimen show us that the police need to ensure that the police need to deal with you carefully and properly in order for an accusation to be successfully prosecuted. At Stephenson’s we have the expert knowledge and diligent approach required to identify any fault in the way you have been dealt with that can lead to the charges against you being dismissed.