Defence to Failing To Provide a Specimen

Tracy Johnson of Forrest Williams

Tracy Johnson of Forrest Williams

Do You Have A Defence to Failing To Provide A Specimen?

Simon Parnell was delighted this week when he received a phone call from his case worker at Forrest Williams, informing him that the motoring charge against him had been dropped. 

When Simon first contacted us, he made clear from the beginning that although he had been charged with Failing to Provide a Specimen of Breath for Analysis, and this charge had resulted in him receiving a summons to court, he had actually tried his best to comply with the request of the police. 

Simon told us that, on arrival at the police station, he had immediately made the desk sergeant aware that he was in some pain, following his involvement in a car crash just a few weeks ago. 

The car crash, he told us, had been serious – it had resulted in his car ending up in a ditch and his being admitted to hospital, where he had to have a dozen stitches in his head. Since the car crash, Simon informed us, he had been suffering with back spasms which were so severe that he had been unable to work and had been signed off indefinitely, covered by his GP’s sick notes. 

On the date in question, Simon told his case worker that he had also been recovering from a bad cold, which affected his sinuses and his ability to breathe in the usual way. 

Simon told us he had tried as hard as he could to give the required samples of breath, but that he was unable to for the reasons given above. 

Once charged with an offence, he was so upset that he quickly arranged to see his GP, who wrote a supporting letter confirming that he was genuinely struggling with painful back spasms, and that breathing out for an extended period of time, as required by the breath test procedure, would have been very difficult/impossible for him to do. 

We advised Simon that he had a defence to failing to provide a specimen.

Following an initial hearing, at which Simon’s not guilty plea was entered, a copy of his medical records was requested and reviewed. These documents showed that Simon’s account of the pain he was in, and the medical treatment he had sought accordingly, were accurate. 

Simon’s case worker liaised assertively with the Crown Prosecution Service (CPS) at this point, with the request that the charge against Simon be discontinued on the basis that he had medical reasons for not providing the required samples of breath. It was respectfully pointed out to the CPS that at no point had the police elected to request either blood or urine samples, both of which could more easily have been provided by our client. The case worker involved also informed the CPS that Simon had made clear to the police officers concerned that he was in pain, and that the level of pain he was in made it impossible for him to give an extended breath, as the breath test procedure required. This important information, however, appeared to have been ignored. 

As a result of the contact from Forrest Williams, a Prosecutor from the CPS reviewed the case and a decision to discontinue the charge against our client was taken. 

Simon was understandably delighted when he received this news. It meant that he no longer faces a potential disqualification from driving, and can now focus his energies on a return to full health. 

He thanked his case worker and all in the Forrest Williams office for their support and assistance through what had been a very stressful time of his life.

If you have been charged with failing to provide a specimen, contact our expert team now on 01623 600645.

Concussion As A Defence To Failing To Provide a Specimen

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.