Were You Physically Unable to Provide a Breath Sample?

New Research Questions the Fairness of “Failure to Provide” Charges

At Geoffrey Miller Solicitors, we represent many clients accused of failing to provide a specimen of breath under the Road Traffic Act 1988. While the law assumes refusal is wilful, a groundbreaking new study suggests that some people may simply be physically incapable of complying, even if they try their best.

The Evidence: Breathalysers May Be Biased Against Certain Groups

A 2023 peer-reviewed study published in the Medico-Legal Journal by Ives, Sbaffi, and Bath examined over 280,000 “healthy” individuals from the UK BioBank. The findings are striking:

• 1 in 61 women and 1 in 186 men were found to be physiologically incapable of providing a breath sample using the current Home Office-approved breath alcohol analysers (Lion Intoxilyzer 6000, Intoximeter EC/IR, and Camic Datamaster).
• Shorter individuals and those aged over 70 were significantly more likely to fall into this category. In fact, nearly 1 in 10 elderly, short-statured women would be unable to provide a valid breath sample.
• Smokers over 40 were twice as likely to fail the test compared to non-smokers, with female smokers at even greater risk.

Despite these findings, the assumption in court remains that a failure to provide a specimen is deliberate unless there is a clear and established medical condition such as asthma or COPD.

What Failure to Provide Means for Your Case

This research adds critical weight to the argument that failure to provide is not always a matter of choice. It demonstrates that even among healthy individuals, biological limitations may prevent compliance with evidential breath test machines.

We frequently raise this issue in defence cases, particularly where our clients maintain that they attempted to comply but were unable to blow hard enough, long enough, or in the exact manner required by the device.

You can read more about these types of defences on our dedicated Failure to Provide page and our specialist Defences for Failure to Provide section.

Our Proven Track Record

At Geoffrey Miller Solicitors, we don’t just talk the talk,  we deliver results.

Why Expert Legal Advice Matters

In light of this evidence, the police should, under the current law, consider alternative specimen types (blood or urine) if breath testing is impractical. But in practice, many officers are unaware or unwilling to exercise this discretion and the default outcome is often a prosecution.

Our firm has significant experience in identifying and defending against these unfair assumptions. Where necessary, we commission independent spirometry tests and forensic expert reports to show that a client was genuinely unable, rather than unwilling, to comply.

Facing a Failing to Provide a Specimen Charge? Get in Touch

If you are being prosecuted for failing to provide a specimen, and you believe you tried your best to comply, don’t accept the charge at face value. You may have a legitimate and scientifically supported defence.

Contact us today for expert legal advice and a strategic review of your case.