Fail to Provide Cases
We adopt a methodical seven stage process to safeguard your license
STEP ONE – GENERAL DEFENCES
Our medical consultants can provide expert reports to comment on whether you have a reasonable excuse for failing to provide which may cover the following issues.
If you did not mention the circumstances at the time of the evidential procedure, this does not stop you from raising them later, especially if the police officer failed to ask you if there were any reasons why you could not provide a sample.
Medical issues – breath sample cases
- breathing or chest problems supported by medical records or respiratory tests.
- anxiety or panic attacks which affect your ability to comply with the request to provide a breath sample
- being required to provide a sample when too intoxicated. Being too drunk has been held to constitute a medical reason for moving to blood or urine.
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
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
- physical or mental inability to provide a urine sample
- The police do not provide a drink to help you pass urine
- The police do not allow a full hour to pass urine
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 malfunction and operator error
1/2 Breath sample cases
If you tried your best to provide a breath sample the failure may be due to a problem with the machine or operator error.
Our police operator consultants can view the CCTV from the breath test room to see if there was a problem with the machine or a mistake by the officer.
They can also check the performance history to check if the machine has been unreliable in the period before your breath (which means the device should have been taken out of service and not in use).
There are 14 possible error messages on one of the machines in use so you should not assume the device was working correctly.
If there is a problem with the machine or operator error this may avoid a ban.
R v RN Leamington Spa MC. The CCTV showed the machine had malfunctioned. Case discontinued.
2/ 2 Blood and Urine sample cases
Conversely the officer might try to justify a blood or urine sample believing that the machine was not working properly.
If our experts believe there was no problem with the machine then the request for blood or urine will be unlawful.
R v GS Harrogate MC. The defence expert showed operator error caused the machine not to function properly so the request for the blood sample was found to be unlawful.
If you have language difficulties which prevented you from understanding technical jargon or procedural terms then you may have a full legal defence.
Where you refuse to provide a breath specimen and you are vulnerable (for example you were in shock after a road traffic accident or have mental health issues) then the police must call a social worker to the police station. If this wasn’t done in your case and you are found to be vulnerable at the time then this may avoid a driving ban.
If these legal defences do not apply or are not successful we can still attempt to avoid a ban by challenging police station procedure.
STEP TWO – 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, some of which have been used successfully to avoid bans for clients of this firm.
- If you are not given a warning before the breath test the prosecution must fail
- You must be given sufficient opportunity to provide a sample
- If the police fail to retain the mouthpiece 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
- the officer fails to ask if there are any medical reasons why you cannot provide a sample
STEP THREE – LEGALITY OF ARREST AND POLICE CONDUCT
In some situations the Court has the power to disallow breath specimens as a result of the 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, and the inappropriate use of strip searches and taser guns.
- Using handcuffs without justification contrary to ACPO guidelines
- The police mislead you on the reasons for stopping your vehicle. This may amount bad faith or ‘mala fides’ for which the Court has the power to disallow all evidence against you.
- Misleading statements by the police that there was permission to enter your property
- Insulting or inappropriate behaviour can result in the case being dismissed. A case against one of our clients was dropped due to unwanted attention.
- You are not taken to hospital immediately after a road traffic accident or the police delay your treatment to obtain a breath sample
- The police are required by force policy to arrange hospital assessment where your airbags inflate.
- The police fail to arrange a translator where you have limited English for example you have difficulty with technical jargon or procedural terms.
STEP FOUR – NON DISCLOSURE
A high proportion of successful cases are where the police fail to comply with their disclosure duties.
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.
STEP FIVE – DISCONTINUANCE
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 and called the police due to not being able to drive home having been unable to contact her husband for a lift. The case was dropped after we persuaded the CPS the client had no intention to drive home.
STEP SIX- BASIS OF PLEA
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.
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.
STEP SEVEN – SPECIAL REASONS
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.
Being distracted at the time of the Evidential Procedure
If you were distracted towards something which you considered more serious then there may be special reasons to avoid a driving ban where you fail to provide. In one case s motorist avoided a ban because he refused a specimen because he was more concerned about being wrongly arrested for theft.
Your theoretical alcohol level at time of specimen procedure
If it can be demonstrated you were below the legal limit at the time of refusing a sample this may avoid a driving ban. We will obtain a scientist report for this purpose which contain calculations based on your physical attributes and drinking pattern to establish your likely breath alcohol level.
Your treatment at the police station
If you were maltreated or denied medical attention by the police this may avoid a driving ban.
No intention of driving
If you were not seen driving, and had no intention of driving, this may avoid a driving ban and penalty points.
Here is an example case dealt with by the firm
R v EK – Stratford MC
The firm successfully argued that special reasons applied for not imposing a disqualification on a failing to provide charge as the client had asked for a glass of water before undertaking the breath test which was refused by the police. Instead of the usual mandatory ban the Judge was persuaded to impose penalty points meaning the client could continue driving.
Call us now on 0800 044 3730 to find out how we can help you