Concussion As A Defence To Failing To Provide a Specimen
What happens when you don’t understand what the police are asking of you?
What if you can’t comply with the requests of you because you can’t make sense of what is going on?
That’s what faced a client of ours who was recently cleared of a Failure to Provide a Specimen for Analysis Charge in Kettering Magistrates Court. He did not give a sample of breath because he did not understand what was going on. Not because of any linguistic barrier but because he had concussion. He had been involved in a serious road accident and had blacked out. The witness statements describe the car as spinning and then rolling several times, they describe him as stumbling, disorientated, slurring his speech.
Now our client did not remember the accident, not really, certainly not clearly. In fact he didn’t really remember a great deal about the evening. He knew he’d had plans to go for dinner so may have had a glass of wine with his dinner but was very clear to us that he would very rarely have more than 1 drink if he was driving. He certainly didn’t expect that he would have been over the limit.
So why not give a sample or breath to prove it? Quite simply because he didn’t understand what was happening because of his injuries.
The charge of Failure to Provide a Sample for analysis is there as a back up. It’s a fail-safe for the police to use when they believe someone is deliberately failing to provide – because if they genuinely believe there are grounds not to be able to provide a sample of breath they do have the option of asking for blood or urine.
Our client was hospitalised after this accident, the police themselves took him to the hospital once he left the station.
As part of our case preparation we instructed a medical expert to meet with our client, to assess him, to review his medical records from the night of the incident and subsequent GP/hospital visits and to compile a report for the court to explain the impact that concussion can have on the cognitive function of the brain – because it’s not just a headache, it’s a serious medical condition with numerous symptoms.
We believed the medical report was self-explanatory, it clearly set out the issues facing our client on the night of his arrest. Unfortunately the prosecution would not agree to the evidence being entered to court in it’s written format (something that is common when we present strong evidence to support our case) and so our expert attended court to give the report verbally. His expert testimony explained to the court the mental state our client would have been in, the disorientation, the out of character actions and behaviour, and, put simply, that he may not have been able to understand what was being asked of him and why and, just as importantly, the consequences of his actions by refusing to provide a sample.
The Court found in our client’s favour. They found that he had a genuine reason for failing to have provided a breath sample. He was acquitted of the charge, avoiding the driving disqualification that would have been imposed had he been convicted. He was not ordered to pay any court or prosecution costs and an order was made that his own legal fees should be assessed and a proportion refunded to him. Both he and his wife were thrilled and so relieved that this long ordeal was over.
This also means that his Insurance Company will be able to finalise his claim for the accident and that cover should remain in place as he was not convicted of an offence.
If you have been charged with an offence and need to speak with someone about this for honest advice then give the Forrest Williams team a call on 01623 600645 and we will be happy to help you.