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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 71043
Experience:  Over 5 years in practice
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Charges: Fail to provide a specimen for analysis - vehicle

Customer Question

Fail to provide a specimen for analysis - vehicle driver
On 19/08/2013 at Charing cross police stn, Agar St, London having been required to provide a specimen or specimen of breath for analysis by means of a device of a type approved by the secretary of State persuant to section 7 of the Road Traffic Act 1988 in the course of an investigation into whether you had committed an offence under section 3A, 4 or 5 thereof failed without reasonable excuse to do so.
Contrary to section 7(6) of the road traffic act 1988 and schedule 2 to the road traffic offenders act 1988
H.O 803/3 Local None CJS RT88010

There are a number of factors i would explore using in my defence.

•Such as the police obtaining 1 sample which came back as 38, confirming that the second sample would be irrelevant if they use the lowest reading anyway
•I was in the passenger seat when the car was approached
•the car was in a car park and stationary
•I visited the site yesterday (22/08/2013) and I did not see any cameras which would have captured the footage of the car moving (although i stated that i drove the car)
•During my arrest, the police used excessive force and still have the injuries to my chest, arm, and leg, i asked for medical attention at the station and this was not given for 2 hours
•I do not believe i was given sufficient time (3 minutes) to give the sample requested (CCTV needs to be reviewed to confirm this)
•Police did not follow PACE prior to interviewing me, validation questions to confirm if i was fit for interview where not asked and i mentioned that i did not sleep for more than 8 hours prior to the interview.
•I believe other PACE procedues where also abused such as me speaking with an officer regarding the case while i was in detention, which could constitute to an interview
•When getting legal advise from the CDS solicitor, i did not speak to him in private

If the prosecution admit to having missed a few key procedures, my defence is to ask the magistrates to confirm if they can trust that i was given a fair opportunity to provide the samples requested despite the mitigating circumstances mentioned above.

do i have a case to defend myself on?
Submitted: 4 years ago.
Category: Law
Expert:  Jo C. replied 4 years ago.

Thank you for your question . My name is Jo and I will try to help with this.

How can I help with this?
Customer: replied 4 years ago.




I want to get advice on how i should prepare my defence. I intend to plead "not guilty" because there are two avenues to explore.


I could either review the matter in detail and understand if there has been an abuse of process or indicate that due to the injury sustained during arrest, i was unable to perform the test in an able position as i did at the roadside.


Please advise

Expert:  Jo C. replied 4 years ago.
I would be happy to help you with this. Please bear with me for about 30 minutes though as I am currently travelling to court. Is that okay?
Customer: replied 4 years ago.




I am happy to wait.


How do you manage to juggle your role and being on this site?


It must be an intensive schedule.





Expert:  Jo C. replied 4 years ago.
Thank you.
Expert:  Jo C. replied 4 years ago.
Sorry for the delay.

Did you provide a specimen of breath?
Customer: replied 4 years ago.


I did not provide 2 specimens of breath. I however did provide one.


Because two specimens are required, the one I provided was not taken as evidence and i was therefore charged with failure to supply the specimen required.


The one specimen i provided had a reading of 38

Expert:  Jo C. replied 4 years ago.

Why did you not provide the second ?
Customer: replied 4 years ago.

I believe I was under distress at the time and I wasn't given sufficient time to provide the second sample.


My arguement is that due to the injury sustained on my left hand during my arrest, the cut on my chest and cut on my leg plus the urgency to urinate, I was unable to sufficiently compose myself to give the specimen.


I did specify that my left hand at the time was in pain from the cuffs which had been loosened shortly before i had to give the sample and my plea to see a medical professional was ignored completely leading to me failing to hold the mouth piece steadily.


At no point did i refuse to give a sample, merely the fact that i had to try to hold the mouth piece with a bruised arm and the other injuries sustained.

Expert:  Jo C. replied 4 years ago.
It is a defence to this charge to say that you were unable to provide a specimen.

The practical reality though is that the chances that the court will say that this meant you were unable to provide are minimal. Being unable to provide involves something like being unconscious in a cell. While these injuries may have made it uncomfortable, they didnt make it impossible as the law requires.

The points that you make above do not amount to defences for these reasons

1. Whether they would have to use that or not, you still cannot refuse to provide.

2. They don't need to find you in the drivers seat.

3. See no 2

4. See no 2
5. That makes no difference to the substantive offence.
6. If this a specimen of breath then that would make no difference.
7. That does not go to the substantive issue. All that means is that they could not rely on the interview which will not be important here anyway.
8. See number 7
9. That is standard procedure with drink driving.

I am sorry but you should plead guilty. You will be convicted. Had you given a specimen of breath it would all have collapsed as the lower reding places you over the legal limit but under the level for a prosecution but that didnt happen even on your own account.

I am very sorry.
Customer: replied 4 years ago.

The charges state that i refused to provide, however I made 3-4 attempts to provide 2 samples and during that time, I only provided 1 due to the distress i suffered at the time.


The charge states that i refused to provide, my defence is that i did not refuse. I gave a sample at the road side, and gave a sample at the station. The station sample was inadequate, however my corporate was not in question.


Do I have a case to consider adding the fact that i was not asked to provide a urine or blood sample?

Customer: replied 4 years ago.

My last point is that I was in the passenger seat at the time and neither in charge of the vehicle or driving.


How can this be a guilty plea if my arrest and charge do not place me under any wrong doing according to the following charges in the road traffic act:


Failing to provide a specimen for analysis while in charge of a vehicle
Failing to provide a specimen for analysis while driving or attempting to drive a vehicle


I did neither of these things. My girlfriend was sat in the driver seat at the time.


Pleading guilty doesnt make sense for me.

Expert:  Jo C. replied 4 years ago.
Yes, I understand. But the law requires you to actually provide not just try.

I'm afraid you have no defence on the facts that you mention here.

I suppose the inability to provide is always a factual test that can be run but the chances of success are not high.

Do feel free to plead not guilty but be aware that you will be convicted and then costs will be higher