Random, we know but this is not the start of a cheesy joke you may find in a Christmas Cracker! There is a very real connection…
The offence of failing to provide a specimen requires three essential “ingredients” to be proven by the court.
1. There was a valid reason to require a specimen.
2. That the requirement to provide a specimen was valid.
3. That you failed to provide a specimen without reasonable excuse.
Before we put you out of your misery with the tenuous connection between this offence and those little grey doves, we will explain how there can often be defences to a charge of failing to provide a specimen. These range from technical procedural flaws and factual defences. Technical arguments will always centre around the police procedures and how these were conducted. It is therefore important to focus upon the first two “ingredients” to establish whether there were any flaws in these processes.
There was a valid reason to require a specimen
The police can require a roadside preliminary breath test following a number of scenarios that are outlined in s.6 of The Road Traffic Act 1988. These are:
If a constable forms a reasonable suspicion that you drove, attempted to drive or are in charge of a vehicle on a road or public place and you have alcohol or drugs in your body or are under the influence of alcohol or a drug or while unfit to drive because of alcohol or a drug and you are still under the influence of alcohol or a drug.
OR
If a constable forms a reasonable suspicion that you drove, attempted to drive or are in charge of a vehicle on a road or public place and you committed a traffic offence while the vehicle was in motion.
OR
Where an accident occurs owing to the presence of a motor vehicle on a road or other public place, and a constable reasonably believes that the person was driving, attempting to drive or in charge of the vehicle at the time of the accident
If you test positive when you do a roadside breathalyser or if the police suspect that you are unfit through alcohol, they are entitled to require an evidential breath test. When you are fit to attend a police station, this will usually be a breath test on an evidential breath test machine.
That the requirement to provide a specimen was valid
In many instances we are able to challenge the validity of the requirement due to failures in police procedure. These range from:
- A failure to communicate the statutory warning (a crucial warning that must be communicated to you so that you understand it about what will happen if you fail to provide the breath test.)
- A failure to investigate possible reasons why you claim you are unable to provide a sample.
- A failure to seek input from a duty solicitor when you request this, although this is not as straightforward as it sounds. The police can press on with the procedure if obtaining a lawyer will delay the breath test.
- A failure to conduct the correct procedures. If you were injured in an accident but not taken to hospital when you should have been, this could be grounds to invalidate the requirement.
That you failed to provide a specimen without reasonable excuse.
The most common reasons that will be accepted as a reasonable excuse to failing to provide a specimen are when a suspect suffers from asthma or they have a needle phobia (in the case of providing a blood sample). However, there are multiple defences that are not limited to a set number of medical conditions. Some examples of reasonable excuse defences that have been successful over the years are:
- A problem with the breath test machine
- A problem with the instructions issued about how to blow into the machine
- Asthma combined with the fact the police set the machine up with the breath test tube the wrong way around
- A heart condition
- Panic attack
- Post-Traumatic Stress Disorder… AND
…Bird Fancier’s Lung!
“Bird Fancier’s Lung” or BFL is a respiratory condition that could make it impossible to provide a satisfactory breath test due to impaired lung function. This condition could well be something that was undiagnosed at the time of the breath test procedure. It is triggered by exposure to avian proteins present in the dry dust of droppings or feathers of a variety of birds including pigeons of course!
This condition affects people who work with birds or own many birds and will almost certainly be accepted as a reasonable excuse for being unable to provide a breath test sample.
We have presented this defence with a successful outcome for our client which is how we know of this obscure condition. Our client was completely oblivious to suffering from BFL at the time but just could not provide a satisfactory breath test.
We work with the country’s leading forensic experts in presenting our defences including top respiratory consultants in our fail to provide cases. This meant that we were able to not only achieve a NOT GUILTY outcome in this case but we were also responsible for ensuring the client received the medical diagnosis of the condition and appropriate treatment and care.
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