But I wasn’t driving! The perils of failing to provide a specimen

Imagine this, you just arrive home having had a long day at work and decide to have a beer or two. Suddenly, unannounced, the police arrive at your door and let themselves in. They advise you they have had a complaint and someone has alleged you have been drinking and driving. The police can see you have had a drink and you advise them this occurred after arriving home.

Despite this, the police request a breath sample from you. You provide the sample and it shows you are over the limit. You try to reason with the police stating you only drank after arriving home but they are not willing to listen. When you arrive at the police station you are frustrated and want to speak with a lawyer, but they will not allow you to do so. Because you had not driven whilst over the limit and the police denied you access to a lawyer, you refuse to provide a specimen. You are charged with failing to provide a specimen for analysis.

Whilst the above is a tad of an extreme example, similar circumstances were involved in a case handled by our firm. Our client was acquitted (found NOT GUILTY), but many others are not so lucky. Many motorists do not know that even if you have not been driving a vehicle you can still be charged with failing to provide a specimen which is a serious offence with the same minimum penalty and sentence as drink driving. What is also less commonly discussed is that this offence is a singular offence – unlike the distinction you often see with “drink driving” or “drunk in charge”.

So what can you do if you are charged with failing to provide but there is no admissible evidence of driving and you are unsure about the cost and risks of defending the charge. It is often the case the Prosecution will lay the charges as fail to provide whilst having suspected/having driven a motor vehicle. If you did not drive or there is little evidence to prove that you did, we may be able to persuade the prosecution to accept a “basis of plea” in which we submit you would be willing to plead guilty, but on the basis you were not driving the vehicle.

This is important because the penalties for failing to provide and failing to provide (whilst in charge) are materially different. One carries a mandatory driving ban, whilst the other the possibility of penalty points. Even if the Prosecution refuse to accept your basis of plea, if you were not in fact driving the vehicle, the matter could proceed to a “Newton Hearing” which is similar to a mini trial where the court will decide on any dispute on the factual issues. Even if the prosecution rejects a proposed basis of plea of fail to provide a specimen when in charge, all is not lost.  The court could override this decision and choose to sentence on the basis of you being in charge. Failing to provide a specimen when in charge of a vehicle carries a minimum penalty of 10 penalty points and a fine. However, a disqualification is still a possibility and it would be a criminal conviction. Therefore we always recommend speaking with one of the members of our talented legal team to work out the best strategy to apply to achieve your specific objectives.

If you find yourself in a situation where you have been charged with a failing to provide offence and were not driving/there is no admissible evidence of driving we urge you to contact us immediately. We will be able to advise you on all your options and guide you on a path to the best possible outcome.