What is failing to provide - will I go to prison?

Failure to provide a specimen for analysis is a separate offence contained within the same legislation as drink and drug driving offences. The purpose, broadly, of the failing to provide offence is twofold; 

•  firstly, it exists to prevent people who are suspected of drug driving from deciding not to provide a sample to avoid being convicted, 
•  secondly (and perhaps more importantly) if you have been charged with the offence, it is designed to protect your right to not self-incriminate. This is the more important element for you if you have been charged, and we will explain why below.  

What is self-incrimination?  

You have a fundamental right when accused of a criminal offence to avoid incriminating yourself. This, put simply, means you do not have to provide any evidence that proves that you have committed a criminal offence.  

Think back to when you were at the police station, you were most likely asked to provide a specimen of breath or blood so that it could be analysed. 

Before we go any further, consider any other criminal offence - we will use an assault as an example here - the police will need to go away and gather evidence. This may be through interviewing witnesses, reviewing CCTV, etc. Ultimately it will be multiple factors that will contribute to you being charged with the offence.  

If we go back to drink or drug driving, the only evidence, for the most part, will be the sample that you have provided, whether that is breath or blood. You will have provided the sole evidence that the prosecution are going to use to convict you of the offence. This is, on the face of it, a direct breach of your right to not incriminate yourself.  

 

Why are the police allowed to make a request for a sample?  

The police are only allowed to make the request for you to incriminate yourself providing that they have followed all the correct procedures. There is a complicated booklet, known as the MGDD document, which is a standard pro-forma document that the police must complete to be able to lawfully make the request for a specimen. Contained within that document is a warning, known as the statutory warning, which must make you aware that you do not have to provide a specimen for analysis if you do not want to. This is where the failing to provide offence comes into play.  

The importance of the above is that, because of your right to avoid incriminating yourself, if the proper procedures have not been followed by the police, then you will have a full defence to the allegations. Whether that is failing to provide, drink driving, or drug driving.  

 This may sound like a nuanced technical argument, but – whilst the procedure is technical in nature – a failure to give the appropriate warnings by the officer will present you with a full statutory defence. This means that you will avoid a conviction for the offence and avoid a driving ban (or potentially a prison sentence, in the most severe cases). 

If you have any concerns about how the officers have dealt with you in the police station, or you wish to discuss your time in the police station with us, then you can call us on 0151 422 8020. All our initial advice is free of charge and one of our specialists will be able to tell you whether you have a full defence to the charge on this call.  

I think the officer did complete the procedure with me – do I have a defence?  

A failure to complete the proper procedures with you is not the only defence to the allegation of failure to provide. You may also have a reasonable excuse for failing to provide. A reasonable excuse, for example, could be a phobia of needles (if you were requested to provide a blood sample) or anxiety/panic attacks that affect your ability to breathe (if the sample is one of breath). These are not exhaustive examples. If you think that you may have a reasonable excuse for failing to provide then do feel free to explore this with us and we can explore any defence options with you. A reasonable excuse argument is always best when supported with expert evidence; we work with experts up and down the country who specialise in these types of reports and are familiar with how evidence needs to be given in Court, so we will be best placed to explore the options with you and properly prepare your defence.  

Even if you do not think you have a reasonable excuse, and you think that the procedure has been completed correctly, you may still have a defence. We recently dealt with a case on behalf of a returning client who was accused of drug driving. The appropriate warnings were given and the MGDD document was completed in the right way. As he was leaving the station, our client asked, “what would have happened if I didn’t provide [a specimen]?” The officer told our client that if they did not provide a specimen, then they would have been charged with drug driving anyway. This is wholly incorrect.  

We attended Court with our client on the first hearing and we raised issue with the fact that the officer had essentially invalidated the whole procedure by misadvising our client after the fact. The Crown Prosecution Service opposed this. The Court agreed with us that this invalidated the procedure and allowed us to raise this as a defence issue. The Crown Prosecution Service dropped the case after the first hearing on this basis as the Court had showed that they were likely to agree with us in the long term, and factually, our client hadn’t been warned properly despite the procedure being completed correctly.  

 There are always options available when you are faced with a charge of failing to provide a specimen for analysis, and we would never advise anybody to plead guilty to the offence without having first taken legal advice. There may be a defence available to you without you even knowing. 

 

What happens if I plead guilty? 

If you plead guilty at the first court hearing, then you will normally be sentenced at that hearing. The sentence for failing to provide is normally harsher than that of drink or drug driving. This means that the length of disqualification is normally higher and, additionally, there is an increased risk of prison. The severity of the sentence is normally in correlation with the level of impairment exhibited by you at the roadside/police station. The problem is that impairment is subjective, and the officers may be able to say things in their witness statement that make out as though you were impaired when, in fact, you weren’t. This is why it is very important to take legal advice before your Court date to determine whether you have a defence available to you.