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Failing To Provide A Specimen – The Defences

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When a motorist fails a roadside breath test they are arrested and taken to the police station for further investigations and interview. In furthering their investigations the police will require the motorists to give a second evidential sample which can be either breath, urine or blood.

If the motorist fails to give that evidential sample then they may well be charged with the offence of failing to provide a specimen. However, there is a defence to this charge and that is of “reasonable excuse”.

The concept of a “reasonable excuse” encompasses medical reasons for failing to provide a specimen and these can be both physical and psychiatric.

An expert psychiatrist in such cases is Mr Saal Seneviratne who has been published on the topic of drink driving offences and especially in the area of failing to provide a specimen. What follows is a review of his recent paper on the subject and how his findings can be applied to practical cases.

Failure To Provide A Specimen Of Breath

In providing a specimen of breath the police require the motorist to use the breathalyser machine at the police station. This is a piece of equipment that has been approved for such purposes by the Secretary of State. It should be noted that there are 3 types of breathalyser machine that have been approved by the Secretary of State. They are the CAMIC Datamaster, the Intoximeter EC/IR and the Lon Intoxilyser 6000UK.

For the intoxilyser machine to work properly and give an accurate reading the motorists needs to give a sustained and consistent “blow” into the machine. If they do not manage the required level of breath then the test will fail.

Although there can be psychiatric considerations as to why they cannot “blow” into the machine, it must also be considered that the issue could be of a physical nature. Such physical conditions can include those that are associated with breathing such as asthma, cardiovascular or respiratory diseases.

Physical health and associated treatment could have a bearing on the motorist’s state of mind at the time the evidential sample is being taken. It can actually have a psychological effect on their ability to comprehend the circumstances fully and to follow instructions properly. It has also been stated that associated medication can have an effect on a person’s mental sate.

Owing to the nature of what the motorist is going through and the stresses associated with being arrested, the aspect of a panic attack must always be considered. A panic attack will usually last for several minutes but it has been noted that attacks can last for a few hours. The general symptoms of a panic attack are a shortening of breath and a tightening of the chest. These 2 main aspects of a panic attack can mean that the motorist cannot give the steady flow of breath that is required by the intoxilyser machine.

If the motorist has a history of panic attacks or associated disorders such as depression or anxieties of any kind, then they need to tell their solicitor straight away.

In support of defending a charge of failing to provide a specimen of breath the court will want to see any associated GP notes along with any expert witness who will no doubt be instructed in such a case.

Failure To Provide A Sample Of Blood

A surprising amount of people are afraid of needles and in being arrested, the stress levels for the motorist can heighten this level of anxiety.

A motorist with a needle phobia can find their decision making process become disrupted and be unable to weigh up the consequences of the choices they may make.

It has been noted that the phobic anxiety associated with the needle is usually caused by the very thought of it, let alone the needle piercing the skin.

The sufferer, in this case the motorist, is normally aware of how irrational the fear or phobia seems and will also find themselves feeling embarrassed about the way they are reacting. This is further heightened by the number of people around them, witnessing that the procedure is being carried out correctly.

In extreme cases it has been stated that some people with a needle phobia have such a physical reaction that their veins actually “shut down” or narrow and the attending physician is unable to take any blood sample at all.

Again, GP notes showing a history of needle phobia will be needed to put before both the court and any expert witness that has been instructed for the case.

It is of interest to note that many needle phobics often cancel medical appointments owing to their fear of needles even when such avoidance can have a detrimental effect on their health.

Failure To Provide A Specimen Of Urine

It has been shown that whereas anxiety can generally increase the need to urinate, a panic attack can impeded if not stop the need and flow of urine.

Also it should be noted that physical medical conditions can have a dramatic effect on the lack of ability for a person to urinate. These conditions can include prostate disease, bladder infections, urethral disease, urinary retention and unusually, incontinence.

As with all medial or psychological conditions that can form a “reasonable excuse” in such cases, GP notes are vital for both the court and any instructed expert witness.

Expert Witnesses And What To Expect

In assessing whether a motorist has suffered a psychological episode whilst under arrest for drink driving, they will need to be interviewed by a psychiatrist.

This in itself can be a daunting experience as most people will not have spoken to a psychiatrist or indeed seen their GP about about any potential mental health issues. However, if they have suffered psychological issues during their arrest they will need psychiatric evidence to support their case before the courts.

There is generally some delay between the motorist being charged and a trial date which, affords good time for the collection of medical notes to be reviewed and submitted in support of their case.

If the arresting office or custody sergeant suspects that the motorist is suffering from a mental disorder then they will need a forensic medical examination.

If the motorist is diagnosed as having had a panic attack, it is very difficult for the prosecution to challenge such an assertion if they have not been assessed at the time of failing to provide the specimen. It is important that the expert has sight and sound of any video or audio recordings that were made at the time.

In his statement, the expert witness will be looking for evidence of the 4 main types of anxiety symptoms, which are:

  • Emotional
  • Cognitive
  • Psychological
  • Behaviour

An in-depth review of the witness statements from the attending police officers and description of the motorist’s demeanour on the MGDD/A can prove invaluable when assessing their mental state that the relevant time.

The expert should also want to have sight of the motorist’s custody record which should have a note of any mental health problems when they are booked in.

The importance of GP notes have been mentioned throughout and it cannot be stressed enough how vital they are. The expert will be looking for any relevant pre existing conditions however, it should be noted that many psychiatric illnesses go unnoticed in the general population and therefore may not be evidenced within the notes.

There is still a stigma about mental health issues and many such people will suffer in silence rather than seek help from their GP.

The expert generally prefers to sit behind the solicitor or barrister in court so as to offer suggestions for the cross examination of witnesses. Many experts also gain a greater insight into the motorist’s state of mind when hearing the live evidence of witnesses as opposed to only reading the written witness statements.

Further Reading

If you would like to read a copy of Mr Seneviratne’s paper on this matter please click here.

About Carl Millar

Carl Millar is a highly respected and experienced drink driving solicitor who is the principal of Millars Solicitors.

Carl has been a specialist in road traffic law for many years and represents clients from all walks of life and all over the Country. He is well known for the dogged defending of his clients and robust cross examination of police officers and exert witnesses.

With a wealth of expertise in motoring law Carl is well placed to provide advice over the phone and deal with all road traffic matters in a calm and professional way.

Getting in contact with Carl and Millars Solicitors is really easy. You can call him FREE on 0800 999 5535 or in an emergency you can call on 07732 054827.

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