Fail to Provide Cases

We will assess your case to see if any of the following general defences apply 

Medical issues – breath sample cases

• If you had breathing or chest problems we can obtain an independent expert report which if favourable be sent to the prosecution to ask for the charges to be discontinued.
• If you experienced anxiety or panic attacks which affected your ability to comply with the request to provide a breath sample we can obtain a psychologists report in support of the case.

Case example

R v RJ Walsall MC.

We successfully argued that a client was too distressed to provide a breath sample. A favourable expert report was obtained. 

R v JK Leeds Crown Court. 

Our medical expert convinced the Judge that our client was unable to control her coughing which prevented her providing a breath sample.
 

Medical issues – blood sample cases

• Refusal due to needle phobia may amount to a reasonable excuse for failing to provide.
• If you are not medically fit or mentally fit we can obtain a psychologists report to ask for the charges to be discontinued.

Case example

R v BA Bury St Edmonds. 

Case dropped because client should have been offered a urine sample due to fear of needles.

Medical issues – urine sample cases

• You will have a reasonable excuse if you are physically or mentally unable to provide a urine sample
• There will be no refusal if police fail to provide a drink to help you pass water or you are not given an hour to comply with the request for urine sample.

Case example

R v EL Hammersmith MC. 

In this case our client was acquitted after police allowed the client to fall asleep before providing the urine sample and did not give him a drink to help him pass water.

Machine fault and operator error 

If you tried your best to provide a breath sample the failure may be due to a problem with the machine or operator error.

We will review video footage from the breath test procedure to check for the following

• A machine fault may have been overlooked by the officer. There are 14 potential error messages on one of the breath test devices.
• The machine may not have been set up correctly.
• The device may not have been properly serviced. We can request the performance history to see if the device has been behaving erratically or unpredictably in the period before your breath test (which means the device should have been taken out of service and not in use).

Case example

R v RN Leamington Spa MC. 

The CCTV showed the machine had malfunctioned. Case discontinued.

If these legal defences do not apply or are not successful we can still attempt to avoid a ban by challenging police station procedure.

We can view the CCTV from the police station or the officers body worn video in hospital cases to assess whether there has been a significant  breakdown in police procedure.

In this situation the Court has the power to disallow all prosecution evidence against you, resulting in dismissal of the charges.

These are just a few examples, many of which have been used successfully to avoid bans for clients of this firm:

• The officer does not give sufficient opportunity to provide a sample
• If the police fail to retain the mouthpiece in breath cases then it may be possible to argue you cannot have a fair trial
• The officers may fail to rule out risk of radio interference with the machine in breath cases.
• the officer fails to ask if there are any medical reasons why you cannot provide a sample
• The courts have ruled if you are not told you will be prosecuted for failing to comply with the urine specimen procedure the police must not continue with the case against you. This is called the ‘statutory warning'.
• The police must arrange an assessment by a police doctor where you have sustained injuries to determine your fitness for interview.
• The police must take a blood or urine sample at the hospital if you are not medically fit to be detained after sustaining injuries.
• You must be medically and mentally fit for the urine specimen procedure. If you are in shock or in pain and this prevents you from understanding your legal rights we may apply for dismissal of the charges with a favourable medical report.
• The courts have ruled the police must arrange a translator where the suspect has limited English for example difficulty with long or technical words.
• The police cannot legally proceed with the specimen procedure without a social worker present if you are vulnerable.

The court has the power to exclude the crown's case as a result of unlawful arrest or from the conduct of the arresting officers.

Here are some examples

• Excessive force or intimidation. A number of clients have had charges dismissed due to intimidation, disproportionate force and the inappropriate use of strip searches and taser guns.
• Using handcuffs without justification is by definition an assault under ACPO guidelines
• The police officers may make false claims as to the reason for stopping your vehicle. This may amount to bad faith resulting in discontinuance of the charges as the credibility of police witnesses must be taken into account by the CPS under the code for prosecutions.
• False claims by the police officers that they had your permission to enter your property which is proven not to be the case by body cam footage may result in discontinuance due to bad faith.
• Insulting or inappropriate behaviour can result in the case being dismissed. A case against one of our clients was dropped due to inappropriate and unwanted attention by an officer. 
• The police are required by force policy to arrange hospital assessment where your airbags deploy after a collision.

A high proportion of successful cases are achieved where it is not possible to have a fair trial because the police fail to provide video footage or documentation to comply with their disclosure duties. The courts have ruled the crown's case may be excluded in its entirety in this situation. 

If we are unable to prepare your case due to the prosecution failing to supply evidence you are entitled to an acquittal.

Here are some examples

R v RJ – North Tyneside MC. 

Client did not have an interpreter at the police station. Case dropped before trial due to the prosecution failing to comply with the duty to serve unused material.

R v MA – Camberwell Green MC.

Client had not consumed sufficient alcohol to exceed prescribed limit. Case dropped before trial after the prosecution failed to serve the CCTV from the breath test room.

In some cases we can persuade the CPS to drop charges before the case proceeds to court. This saves you the expense and worry of having to attend Court. 

Here are some example cases dealt with by the firm

R v ZA – Hendon MC.

The matter was discontinued in advance of a disclosure hearing. The Defendant didn't need to attend for her trial.

R v AK – Luton MC. 

Notice of discontinuance served. Issue of whether the police followed the correct procedure

R V HS – Banbury MC. 

Client was alone in her vehicle at a car park after consuming alcohol. She called the police with no other no means to get home after trying to contact her husband for a lift. The case was dropped after we persuaded the CPS the client had no intention to drive home.

In some circumstances we can ‘plea bargain' with the police to allow certain circumstances to be taken into account which may avoid a driving ban. Failing to provide does not have to result in a driving ban even on a guilty plea.

Case examples

R v AB – York MC.

 We persuaded the prosecution to accept a plea to failing to provide whilst being in charge where there was no evidence of driving. This meant that instead of the mandatory 3 year disqualification, the defendant only received a 6 month disqualification and was able to keep his employment.

R v SC – Mansfield MC.

The prosecutor accepted a plea to failing to provide a specimen of breath whilst being in charge, despite the client accepting in interview that she was the driver. This meant that penalty points were imposed instead of a mandatory disqualification.

Special reasons can avoid a driving ban where no legal defence is available. In some cases even a criminal record may be avoided and your legal fees reimbursed.

Distracted at the time of the specimen procedure

If you were distracted by something you considered more serious at the time of the specimen procedure the court may find special reasons to avoid a driving ban. In one case a motorist avoided a ban because he was more concerned about wrongful arrest for theft.

Your likely alcohol level at time of specimen procedure

If it can be demonstrated you were likely to be below the legal limit at the time of refusing a sample this may avoid a driving ban.

Your treatment at the police station

If you were mistreated or denied medical attention by the police this may avoid a driving ban.

No intention of driving

If you had no intention of driving this may avoid a driving ban and penalty points.

Case example

R v DP – Luton Crown Court

The client was charged with failing to provide breath specimen. Richard Berman (instructed by Laura Heywood) successfully appealed a driving ban. The client had provided one breath sample below the prescribed limit but had been unable to provide a second sample. It was argued that the fact one sample was below meant the client posed no risk to other road users and amounted to special reasons. This legal argument was accepted by the Court.