KNOW YOUR RIGHTS
If you fail to respond you could be prosecuted for failing to provide driver information and be at risk of receiving sixpoints and up to a £1,000 fine – even though the car is not yours and you weren’t driving it.
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I was then woken up by a police officer knocking on the window. It’s really embarrassing but in my drunken state I refused their breath test and I just carried on arguing with them. I was arrested and worked myself up into such a state that when I got to the police station I was crying and all over the place, and I refused to provide breath. Honestly I can’t remember much, I was very drunk, I was in a state and I was in panic mode. I’m now in court next week for ‘failing to provide a specimen of breath for analysis’.
My question is: can they ask me for a specimen of breath even though I wasn’t drink driving, did I have a right to refuse as I wasn’t driving and if not, is there anything I can do? I have looked online and can see that I could go to prison for this.
A
Firstly yes, the police do have the right to require you to provide a specimen of breath if they sus- pect you have committed an offence. It is an of- fence to be “in charge” of a vehicle whilst drunk and if you were sleeping in the car it would be
safe to say you were in charge of it. And having asked you to provide one, no, you had no right to refuse.
However, there are still a couple of options available to us.
It is a defence to failing to provide a specimen if the suspect had a “reasonable excuse” for failing. A rea- sonable excuse must be borne out of a mental or phys- ical incapability and so I would like to see the CCTV footage to determine your exact state when they were asking you to provide.
If we could show that you were perhaps having a panic attack rendering you physically incapable of blowing into the breath machine or that you were mentally unable to understand the instructions/requests that you were given, we may be able to defend it.
The difficulty we would have is that it must be an inca- pability and that usually has to be backed up with med- ical evidence. If you have history of anxiety or panic
JANUARY 2021
I had a row with my husband on Christmas Day. His family were round and they all started to back him up and told me to leave. I knew that I’d had too much to drink so I went to sleep in the
attacks that would help, and we may even need to instruct a psychiatrist to ex- amine the footage.
However if you understood the procedures and were capable of providing, but simply refused on the basis that you weren't driving (i.e. if it was your choice to refuse), then that's not a defence. But you may still have a special reasons ar- gument available. On the face of it, I would even say that this is the stronger of the two arguments.
A special reason means that we would plead guilty to failing to provide but argue that there are special rea- sons for not disqualifying/endorsing penalty points on the basis that you only refused because you did not drive and had no intention of doing so (which is a de- fence to being in charge of avehicle).
In short – you refused as you had done nothing wrong and had no intention of doing anything wrong.
If successful, it means that even though you are guilty we may come away with no ban or points.
If both of those arguments fail, then we can still argue the sentence. Usually failing to provide a specimen car- ries a minimum 12-month ban but in your case we would argue that as there is no evidence of you driving, the court should sentence you in line with being ‘in charge’ of the car rather than driving it, which carries 10 points or a discretionary ban rather than the minimum 12-month ban that comes with driving the vehicle.
You are correct in your assertion that prison is a possi- bility, however I would say that it is unlikely here. Prison sentences tend to be reserved for the more serious of cases where there are high levels of impairment and er- ratic or unacceptable driving.
But we must get to work urgently as I would like to re- quest and review any CCTV footage before we decide which argument to run.
This impartial advice has been provided by Patterson Law Solicitors 01626 359800
www.pattersonlaw.co.uk
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