Failing to provide a Specimen without a reasonable excuse is an offence.
What amounts to a reasonable excuse is construed fairly narrowly. However, it is possible to defend against a charge of failing to provide. Failing to
provide a specimen is considered to be more serious than drink or drug driving and the sentencing guidelines for this offence reflect that seriousness. Find the sentencing guidelines
below.
Of course, there is a procedure which must be adhered to and warnings which must be given during the process.
If the Police fail to adhere to their own procedures, then it might be possible to defend against the charge. Moreover, if it was medically impossible for you
to provide a specimen of breath then you have a defence to this allegation. If the sample required is blood, fear of needles might amount to a defence.
If you want to discuss this further contact Coral Fitzgerald on 07790 356069.
The sentencing guidelines for this offence are shown below. Again, the guidelines differ for Driving / Attempting to Drive and Being in Charge of a
vehicle.
The guidelines were revised in April 2017.
The Sentence for Failing to Provide following Driving or Attempting To Drive falls into three categories. Category 1 is 'Higher Harm and Higher
Culpability,' Category 2 is Higher Culpability and Lower Harm (or lower culpability and higher harm) and Category 3 is Lower Culpability and Lower Harm.
So for example, where there is an offence where there is a deliberate refusal and a high level of impairment, the starting point for sentence is 12 weeks in
custody.
In the absence of a defence, it might be possible to negotiate with the Prosecution. The importance of putting forwards any mitigating features, or contesting
any aggravating features cannot be over stated.
Fail to provide
specimen for analysis (drive/attempt to drive) (Revised 2017)
Road Traffic Act 1988, s.7(6)
Effective from: 24 April 2017
Triable only summarily
Maximum: Unlimited fine and/ or 6 months
Offence range: Band B fine – 26 weeks’ custody
Step 1 – Determining the offence category
The Court should determine the offence category
using the table below.
Category 1 Higher
culpability and greater harm
Category 2 Higher
culpability and lesser harm or lower culpability and greater harm
Category 3 Lower
culpability and lesser harm
The court should determine the offender’s
culpability and the harm caused with reference only to the factors below. Where an offence does not fall squarely into a category, individual factors may require a degree
of weighting before making an overall assessment and determining the appropriate offence category.
CULPABILITY demonstrated by one or more of the
following:
Factors indicating higher
culpability
- Deliberate refusal/ failure
Factors indicating lower
culpability
HARM demonstrated by one or more of the
following:
Factors indicating greater harm
Factors indicating lesser harm
Step 2 – Starting point and
category range
Having determined the category at step one, the
court should use the appropriate starting point to reach a sentence within the category range in the table below.
- Must endorse and disqualify for at least 12 months
- Must disqualify for at least 2 years if offender has had two or more disqualifications for periods of 56 days or more in preceding 3
years – refer to the disqualification guidance and consult your legal adviser for further guidance
- Must disqualify for at least 3 years if offender has been convicted of a relevant offence in preceding 10 years –consult your legal
adviser for further guidance
- Extend disqualification if imposing immediate custody
If there is a delay in sentencing after
conviction, consider interim disqualification.
The starting point applies to all offenders
irrespective of plea or previous convictions.
| Level of seriousness |
Starting point |
Range |
Disqualification |
Disqual. 2ndoffence in 10 years |
| Category 1 |
12 weeks’ custody |
High level community order – 26 weeks’ custody |
29 – 36
months
(Extend if imposing
immediate custody)
|
36 – 60
months
(Extend if imposing
immediate custody
|
| Category 2 |
Medium level community order |
Low level community order – High level community
order |
17 – 28 months |
36 – 52 months |
| Category 3 |
Band C fine |
Band B fine – Low level community order |
12 – 16 months |
36 – 40 months |
Note: when considering the guidance regarding the
length of disqualification in the case of a second offence, the period to be imposed in any individual case will depend on an assessment of all the relevant circumstances, including the length of
time since the earlier ban was imposed and the gravity of the current offence but disqualification must be for at least three years.
The court should then consider further adjustment
for any aggravating or mitigating factors. The following is a non-exhaustive list of additional factual elements providing the context of the offence and factors relating
to the offender. Identify whether any combination of these, or other relevant factors, should result in an upward or downward adjustment from the sentence arrived at so far.
Factors increasing seriousness
Statutory aggravating factors
- Previous convictions, having regard to a) the nature of the offence to which the conviction relates and
its relevance to the current offence; and b) the time that has elapsed since the conviction
- Offence committed whilst on bail
Other aggravating factors
- Failure to comply with current court orders
- Offence committed on licence or post sentence supervision
- LGV, HGV PSV etc.
- Poor road or weather conditions
- Carrying passengers
- Driving for hire or reward
- Evidence of unacceptable standard of driving
- Involved in accident
- High level of traffic or pedestrians in the vicinity
Factors reducing seriousness or reflecting
personal mitigation
- No previous convictions or no relevant/recent convictions
- Remorse
- Good character and/or exemplary conduct
- Serious medical condition requiring urgent, intensive or long-term treatment
- Age and/or lack of maturity where it affects the responsibility of the offender
- Mental disorder or learning disability
- Sole or primary carer for dependent relatives
Fail to provide
specimen for analysis (in charge) (Revised 2017)
Road Traffic Act 1988, s.7(6)
Effective from: 24 April 2017
Triable only summarily
Maximum: Level 4 fine and/ or 3 months
Offence range: Band B fine – 6 weeks’ custody
Step 1 – Determining the offence category
The Court should determine the offence category
using the table below.
Category 1 Higher
culpability and greater harm
Category 2 Higher
culpability and lesser harm or lower culpability and greater harm
Category 3 Lower
culpability and lesser harm
The court should determine the offender’s
culpability and the harm caused with reference only to the factors below. Where an offence does not fall squarely into a category, individual factors may require a degree
of weighting before making an overall assessment and determining the appropriate offence category.
CULPABILITY demonstrated by one or more of the following:
Factors indicating higher culpability
- Deliberate refusal/ failure
Factors indicating lower culpability
- Honestly held belief but unreasonable excuse
- Genuine attempt to comply
- All other cases
HARM demonstrated by one or more of the following:
Factors indicating greater harm
Factors indicating lesser harm
Step 2 – Starting point and
category range
Having determined the category at step one, the
court should use the corresponding starting point to reach a sentence within the category range below.
- Must endorse and may disqualify. If no disqualification impose 10 points
- Extend any disqualification if imposing immediate custody
The starting point applies to all offenders
irrespective of plea or previous convictions.
| Level of seriousness |
Starting Point |
Range |
Disqualification/points |
| Category 1 |
Medium level community order |
Low level community order – 6 weeks’
custody |
Disqualify 6 – 12 months
(Extend if imposing immediate custody) |
| Category 2 |
Band C fine |
Band C fine – Medium level community order |
Disqualify up to 6
months OR 10 points |
| Category 3 |
Band B fine |
Band B fine |
10 points |
The court should then consider further adjustment
for any aggravating or mitigating factors. The following is a non-exhaustive list of additional factual elements providing the context of the offence and factors relating
to the offender. Identify whether any combination of these, or other relevant factors, should result in an upward or downward adjustment from the sentence arrived at so far.
Factors increasing seriousness
Statutory aggravating factors
- Previous convictions, having regard to a) the nature of the offence to which the conviction relates and
its relevance to the current offence; and b) the time that has elapsed since the conviction
- Offence committed whilst on bail
Other aggravating factors
- High likelihood of driving
- Failure to comply with current court orders
- Offence committed on licence or post sentence supervision
- In charge of LGV, HGV, PSV etc.
- Offering to drive for hire or reward
Factors reducing seriousness or reflecting personal mitigation
- No previous convictions or no relevant/recent convictions
- Remorse
- Good character and/or exemplary conduct
- Serious medical condition requiring urgent, intensive or long-term treatment
- Age and/or lack of maturity where it affects the responsibility of the offender
- Mental disorder or learning disability
- Sole or primary carer for dependent relatives
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