Failing to Provide a Specimen Solicitors

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Failing to Provide a Specimen Of Breath, Blood or Urine

If the police have reasonable suspicion that you have either been driving or attempting to drive a vehicle on a road or other public place while over the limit for alcohol, you may initially be required to provide a breath sample at the roadside.

The police can also request a sample from you if they believe you are in charge of a vehicle while over the limit.

If you provide that sample and are found to be over the limit, you will usually be taken to a police station to provide a further breath sample on the intoximeter.

Failing to provide offences

There are several offences which are often collectively referred to as “Failing to Provide”. The most common is that is failing to provide a breath sample at the police station ie. failing to provide a specimen of analysis. The offences are:

  • Failing to co-operate with a preliminary test (usually at the roadside)
  • Failing to provide a specimen for analysis (usually breath, but may also be blood or urine)
  • Failing to allow specimen of blood to be subjected to laboratory test (where blood is taken without your consent and you subsequently refuse for the specimen to be analysed)

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The penalties for the second and third failing to provide offences above are are similar to those for drink driving and drunk in charge depending on whether you are charged with driving and failing to provide or with being in charge and failing to provide. In either case, you are at serious risk of losing your licence.

You cannot argue exceptional hardship with drink driving/in charge related offences, so it’s therefore important to take proper advice.

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The main defence for failing to provide is that you had a “reasonable excuse” for failing to provide the sample. Most frequently this defence is put forward where there are medical reasons for failing to provide the sample. For example, if a motorist is bronchitic, asthmatic or has a medical or physical condition resulting in loss of lung capacity and for this reason is unable to blow into the bag in one continuous breath, or sufficiently hard to operate the Alert, Alcolmeter or Alcosensor.

However, the burden of proof to establish that you had a reasonable excuse is on you. Therefore it is almost always necessary to back this up with medical evidence. Once you’ve established a reasonable excuse, the prosecution must then disprove the defence. If they can’t, you should be acquitted. If you think your case is defendable, it’s sensible to have this confirmed by an expert.

For more information please see our FAQs on failing to provide a specimen offences below.


Other Names

Fail to provide breath/blood/urine, Fail to provide a specimen for analysis when suspected of driving or attempting to drive.

Main Legislation

Section 7 Road Traffic Act 1988


Maximum Penalties

Driving Penalties: If driving or attempting to drive – a minimum driving ban of 12 months. If in charge – 10 points or a ban, usually of up to 12 months.

Fine: Unlimited.



Magistrates only (unless an appeal)

Imprisonable? Yes – up to 6 months imprisonment.

Failing to Provide a Specimen Offence FAQs

Can I delay giving the sample until I've spoken to a solicitor?

There are numerous cases which have dealt with this, and the courts have made it clear that the procedure cannot be delayed for this reason. The only time it may be possible to argue this is if a solicitor was readily available and the police deliberately obstructed you from speaking with them.

What if I couldn't give a sample for medical reasons?

It could be if you can establish that this genuinely prevented you from providing a sample. However, most people are stressed when being dealt with at the police station, and yet they still manage to provide a sample. The courts may, therefore, be slightly cynical when stress is the only reason put forward. If this argument can be backed up by evidence, it may still be successful.

What do I have to Prove?

When you raise a defence such as reasonable excuse, the onus is on you to persuade the court. The burden is on the balance of probabilities which means ‘more likely than not’.

What if the reason I didn't give a sample because I hadn't been driving or attempting to drive?

The police officer need only have a reasonable belief that the offence has been committed. Therefore, the fact that you were not driving (even if you can prove it) will not prevent a prosecution for being drunk in charge. The same would apply if you fail to provide a sample simply because you hadn’t had any alcohol. It could, however, be a special reason.

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