Recently at SMQ Legal our solicitors are seeing a large number of motoring cases where people are Failing to Provide a Specimen for analysis. When speaking with a number of clients they held the belief that if they failed to provide a specimen for analysis then they might not be disqualified from driving.
Here is everything you need to know about the law in both these areas:
Driving whilst unfit through excess alcohol is contrary to section 5(1) Road Traffic Act 1988.
- Driving or being in charge of a motor vehicle with alcohol concentration above prescribed limit
(1) If a person –
(a) drives or attempts to drive a motor vehicle on a road or other public place, or
(b) is in charge of the motor vehicle on a road or other public place, after consuming so much alcohol that the proportion of it in his breath, blood, or urine exceeds the prescribed limit he is guilty of an offence.
The legal limit for breath is 35 micrograms per 100ml in breath. The legal limit for blood is 80 milligrams per 100ml of blood and legal limit for urine is 107 milligrams per 100ml of urine.
When looking at the sentencing guidelines your solicitor from SMQ legal services will take you through the relevant category you fall within.
The lowest sentencing category carries a punishment of a financial penalty plus a 12–16-month disqualification, which is increased to 36 – 40 months if this is your second disqualification within 10 years. These disqualifications are mandatory; however you may be able to avoid a ban by arguing ‘exceptional hardship’ but note this is not an easy hurdle to overcome. The length of the disqualification can also be reduced if the court are willing to offer you the opportunity of a drink drivers’ rehabilitation course, and you successfully complete that course by a certain date stipulated by the court.
The highest sentencing guideline (please note there are a few other categories in between) for the offence of drink drive would see a defendant being sentenced to a range of a high level community order up to 26 weeks custody with a mandatory disqualification of 29-36 months, or 36 – 40 months for a 2nd time offender within 10 years.
When we look at the law on failing to provide there are two separate offences:
- Failing to cooperate with a preliminary (roadside) breath test which is contrary to s6 Road Traffic Act 1988 – a person commits an offence if without reasonable excuse he fails to co-operate with a preliminary test
- Failure to provide a specimen for analysis is contrary to s7(6) Road Traffic Act 1988 whereby a person fails to provide a specimen for analysis at the police station
If you provide a positive roadside test, the breathalyzer is faulty, or you have a reasonable excuse for not providing a road side test then the police have the power to detain you and take you to the police station. In accordance with s7(6) Road Traffic Act 1988, they are then entitled to require you to provide 2 specimens of breath for analysis. If the intoximeter machine is faulty/inoperable, or you have a reasonable excuse for not providing a specimen then they can require you to provide a specimen of blood or urine. Note that a detainee does not have the right to op for blood or urine.
The police must give the detainee a statutory warning that failure to provide a specimen may render them liable to prosecution, and they must also provide adequate information as to how to provide a specimen of breath.
There is no set test as to what constitutes a reasonable excuse, however the courts have set the threshold very high, and only consider a limited amount of diagnosed medical conditions as reasonable excuses.
The sentences imposed for these offences are as follows:
- Section 6 of the Road Traffic Act 1988 – discretionary disqualification or the imposition of 4 penalty points
- Section 7(6) of the Road Traffic Act 1988 –the lowest sentencing guideline carries a fine and a mandatory 12 – 16 month disqualification which is increased to 36-40 months if it is a second disqualification within 10 years.
The highest sentencing guideline carries a sentence of a high level community order to 26 weeks custody, with a disqualification or 29-36 months, which is increased to 36-60 months if this is the second disqualification within 10 years.
- Where the accused is seen only in charge of the vehicle this carries a discretionary disqualification or the imposition of 10 penalty points.
If you accrue 12 or more penalty points on your licence within a three-year period then you will be subject to a 6 month driving disqualification under the ‘totting up’ provisions.
The idea that failing to provide a specimen for analysis at the police station, when you have been seen driving carries a lesser punishment clearly is not the case. It is evident that the sentencing guidelines for driving with excess alcohol mirror those of failing to provide a specimen for analysis at the police station when there is no reasonable excuse.
If you have been charged with Failing to provide a specimen for analysis or drink driving get in contact with us today for a free 20 minute consultation on 01865 246991 or 07585610063, we are here to help.
By Lydia Etheridge