If you are found guilty of failing to provide a breath specimen for analysis, the courts are likely to treat it more seriously than an offence of drink driving and you are extremely likely to face a lengthy disqualification from driving. However, defences can emerge if procedures are not adequately performed by police or if the suspect had a reasonable excuse for being unable to provide a sample.

Our Solicitor-Advocate and Director, Nick Titchener, received a new enquiry from the client after researching the area online and identifying our expertise in this complex area of law.

Our client was the driver of a motor vehicle that was involved in an accident. At the scene of the accident he was requested by police to provide a provisional roadside sample of his breath. When the test was done it came back with a reading showing 88mg of alcohol per 100ml of breath. This is above the legal limit which is 35mg of alcohol in 100ml of breath. Therefore, our client was arrested and subsequently conveyed to a local police station in order to undertake an evidential breath alcohol test.

The Police and Prosecution alleged that our client made a number of attempts to provide an adequate sample but was unwilling and deliberately failed to do so. In the police statements it was asserted that our client intentionally avoided providing adequate samples of his breath which ourclient denied.

After being told the breath test had failed our client actually asked officers to take a sample of his blood but this request was rejected by the police.

Our client was charged with failure to provide a breath specimen for analysis and it was at this stage that Lawtons were instructed when the case was going to court. Having consulted with our client and reviewed the evidence our client entered a not guilty plea on our advice and the case was fixed for trial.

Full trial preparation was undertaken including a forensic and very careful analysis of the police evidence, including the CCTV which recorded the breath test intoximeter procedure. Upon consideration of the footage our experienced team of Solicitors and Paralegals detected serious concerns about how the procedure was handled in a number of respects, some of which included that:

  1. A number of different officers were involved in the procedure including the duty Sergeant but they hadn’t all provided statements;
  2. During one of the attempts to provide a sample it was apparent that the mouthpiece to the device had been fitted upside down by the police;
  3. Out of the four attempts made by our client to provide a sample only three print-outs by the machine were available. The fourth appeared to have been put in the wastepaper bin by one of the officers;
  4. There were some concerns mentioned by one of the officers about the reliability of the machine based on previous experience, but the machine’s log had not been made available;
  5. The overall impression from the footage was that our client had been making genuine attempts to provide a sample;
  1. There was a noticeable lack of formality adopted by the officers throughout the entire procedure.

Our carefully sourced expert prepared a report which provided helpful analysis and evidence in our clients favour. We submitted this report to the Crown Prosecution Service (CPS) and shortly after this the CPS discontinued the charges against our client without the need to argue his case at trial or indeed any further Court hearings or expense.

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