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Defending Failing To Provide A Specimen


If you have been stopped by the police and failed a roadside breath test, the next thing that will happen is that you will be arrested and taken to the police station. Once there you will be required to give a further evidential specimen which will be either breath, urine or blood. If you fail to provide this second evidential specimen, without a “reasonable excuse” you are likely to be charged with the offence of failing to provide a specimen.

In reality the notion of a “reasonable excuse” encompasses medical reasons for failing to provide a specimen and these can be both physical and psychological.

If found guilty of the offence then you will face a period of disqualification from driving. Current sentencing guidelines show that the starting point for sentence is a disqualification for 18 months. However, this disqualification period could be higher depending on the circumstances of the offence.

The premise behind the offence of failing to provide a specimen is so that the laws in relation to drink driving are not frustrated by an evidential sample not being given when requested.

An expert psychiatrist in such cases is Mr Saal Seneviratne who has been published on the topic of drink driving offences and especially in the area of failing to provide a specimen. What follows is a review of his recent paper on the subject and how his findings can be applied to practical cases.

Failure To Provide A Specimen Of Breath

There are many cases where a motorist cannot give a specimen of breath at the police station and it can be for a number of reasons.

It maybe due to a physical medical condition, such as Asthma where the motorist cannot blow into the breathalyser machine with the length and consistency of breath that is required. It should be noted that there are 3 types of breathalyser machine that have been approved by the Secretary of State. They are the CAMIC Datamaster, the Intoximeter EC/IR and the Lon Intoxilyser 6000UK.

Other than physical medical conditions there are also psychological conditions that can also impair a motorist giving a proper evidential sample.

It is well noted that psychiatric issues can manifest in conjunction with physical conditions. Physical health and associated treatment could have a bearing on the motorist’s state of mind at the time the evidential sample is being taken. It can actually have a psychological effect on their ability to comprehend the circumstances fully and to follow instructions properly. It has also been stated that associated medication can have an effect on a person’s mental sate.

Bearing in mind that being arrested for drink driving maybe the motorist’s first contact with the criminal justice system, they can find themselves under a lot of stress. This stress can manifest itself as a panic attack.

A panic attack will usually last for several minutes but it has been noted that attacks can last for a few hours. The general symptoms of a panic attack are a shortening of breath and a tightening of the chest. These 2 main aspects of a panic attack can mean that the motorist cannot give the steady flow of breath that is required by the intoxilyser machine.

If the motorist has a history of panic attacks or associated disorders such as depression or anxieties of any kind, then they need to tell their solicitor straight away.

In support of defending a charge of failing to provide a specimen of breath the court will want to see any associated GP notes along with any expert witness who will no doubt be instructed in such a case.

Failure To Provide A Sample Of Blood

Many people are afraid of needles and the stresses associated with being arrested can exacerbate this phobia.

A motorist with a needle phobia can find their decision making process become disrupted and be unable to weigh up the consequences of the choices they may make.

It has been noted that the phobic anxiety associated with the needle is usually caused by the very thought of it, let alone the needle piercing the skin.

The sufferer, in this case the motorist, is normally aware of how irrational the fear or phobia seems and will also find themselves feeling embarrassed about the way they are reacting. This is further heightened by the number of people around them, witnessing that the procedure is being carried out correctly.

In extreme cases it has been stated that some people with a needle phobia have such a physical reaction that their veins actually “shut down” or narrow and the attending physician is unable to take any blood sample at all.

Again, GP notes showing a history of needle phobia will be needed to put before both the court and any expert witness that has been instructed for the case.

It is of interest to note that many needle phobics often cancel medical appointments owing to their fear of needles even when such avoidance can have a detrimental effect on their health.

Failure To Provide A Specimen Of Urine

It has been shown that whereas anxiety can generally increase the need to urinate, a panic attack can impeded if not stop the need and flow of urine.

Also it should be noted that physical medical conditions can have a dramatic effect on the lack of ability for a person to urinate. These conditions can include prostate disease, bladder infections, urethral disease, urinary retention and unusually, incontinence.

As with all medial or psychological conditions that can form a “reasonable excuse” in such cases, GP notes are vital for both the court and any instructed expert witness.

Expert Witnesses And What To Expect

For many motorists in failure to provide cases it will be their first contact with a psychiatrist. It is not the most pleasant of experiences but discussing potential psychological issues can be highly pertinent to their case.

There is generally some delay between the motorist being charged and a trial date which, affords good time for the collection of medical notes to be reviewed and submitted in support of their case.

If the arresting office or custody sergeant suspects that the motorist is suffering from a mental disorder then they will need a forensic medical examination.

If the motorist is diagnosed as having had a panic attack, it is very difficult for the prosecution to challenge such an assertion if they have not been assessed at the time of failing to provide the specimen. It is important that the expert has sight and sound of any video or audio recordings that were made at the time.

In his statement, the expert witness will be looking for evidence of the 4 main types of anxiety symptoms, which are:

  • Emotional
  • Cognitive
  • Psychological
  • Behaviour

An in-depth review of the witness statements from the attending police officers and description of the motorist’s demeanour on the MGDD/A can prove invaluable when assessing their mental state that the relevant time.

The expert should also want to have sight of the motorist’s custody record which should have a note of any mental health problems when they are booked in.

The importance of GP notes have been mentioned throughout and it cannot be stressed enough how vital they are. The expert will be looking for any relevant pre existing conditions however, it should be noted that many psychiatric illnesses go unnoticed in the general population and therefore may not be evidenced within the notes.

There is still a stigma about mental health issues and many such people will suffer in silence rather than seek help from their GP.

The expert generally prefers to sit behind the solicitor or barrister in court so as to offer suggestions for the cross examination of witnesses. Many experts also gain a greater insight into the motorist’s state of mind when hearing the live evidence of witnesses as opposed to only reading the written witness statements.

Further Reading

If you would like to read a copy of Mr Seneviratne’s paper on this matter please click here.

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