An "interesting one". Failure to provide breath, not driving

[ED209]

He would have been better off providing a sample and then raising the defence that there was no likelihood of him driving, if his "friend" was also next to the car waiting to give him a lift this might have been accepted. He has dropped himself in it by failing to provide.

I see lots of people who do this, they fail to provide because they think they weren't driving or the police cannot prove they were driving. They don't understand the power to demand a sample doesn't require proof.

"Yes officer i will provide a sample no problem but i was not driving and i was not likely to drive" is often the best approach.

[stuthemong]

ED209 said:

"Yes officer i will provide a sample no problem but i was not driving and i was not likely to drive" is often the best approach.

20-20 hindsight

[ED209]

stuthemong said:

ED209 said:

"Yes officer i will provide a sample no problem but i was not driving and i was not likely to drive" is often the best approach.

20-20 hindsight

Failing to provide is generally a big big no no, and only likely to end up with a charge sheet.

[tenpenceshort]

ED209 said:

Failing to provide is generally a big big no no, and only likely to end up with a charge sheet.

This.

Whether he would have been under or over the limit or didn't intend to drive is relatively immaterial. The offence he's charged with boils down to obstructing the Police. The punishment for the offence reflects the inference that people who fail to provide do so because they believe they're over the limit.

An appointment with a specialist motoring solicitor should be made to go over the facts and procedural aspects with a fine tooth comb and/or agree on the best mitigation.

[stuthemong]

I see this, thanks again.

I guess it comes down to my point / question, of what would happen if an officer asked for my breath in a pub? Do police have right to ask any person at any place at any time for a mandatory breathalyser test, or do certain requirements have to be met?

[EskimoArapaho]

stuthemong said:

I see this, thanks again.
Do police have right to ask any person at any place at any time for a mandatory breathalyser test, or do certain requirements have to be met?

Good question - do a read-up of the controversial arrest of that guy who was videoing some (anti-fracking?) demonstration. He was recording what he thought was heavy-handed policing. IIRC, the policeman wasn't happy and despite knowing the guy was on foot, the policeman wanted a breath test.

It was big news about 2-3 months ago, see here: http://www.godlikeproductions.com/forum1/message24... (other pages are available)

[boobles]

I knew somebody who was banned from driving for simply removing his laptop from the car whilst over the limit. Police watched him approach his car & waited for him to actually open it & lean in to get laptop.

[Eclassy]

stuthemong said:

The only way I can see him stepping back from a slam-dunk, is to argue that the circumstances under which he commited the absolute offence were not legal, i.e. if the law says you ahve to be in charge of a vehicle for a legal request to be made, then if it were arguable that he were not 'in charge' (or whatever the term would be), then the actual failure to supply can't exist, as it were not a lawful request. This would be the only line that I think he has to go along to try and get cleared of the charge. This is why reading about under what conditions the request for breath can be made under I think is the place to start.... Is this the RTA?

I doubt this. There was a storynon here about a woman who drove home from the pub after a glass of wine. She had been home about 2 hours and had consumed more wine in the comfort of her home.

She stupidly let the police in when they came calling but refused to provide a sample probably fearing she would blow over the limit.

There was also a case of a protester at Barton Moss who was charged with failing to provide but I think that was dropped when the video of the Sgt Kehoe making up the offence surfaced.

I dont know what the outcome of that case of the lady was but I am sure she had a much better chance than your mate. Chances of your mate not getting done is most likely zero.

[Aretnap]

The officer has to have reasonable suspicion that you've been driving/in charge and that you're drunk (or that you've committed a road traffic offence, or that you've been in an accident).

http://www.legislation.gov.uk/ukpga/1988/52/sectio...

Reasonable suspicion is all that's required - if the suspicion turns out to be incorrect the requirement to give a sample doesn't retrospectively become unlawful.

[Rick101]

boobles said:

I knew somebody who was banned from driving for simply removing his laptop from the car whilst over the limit. Police watched him approach his car & waited for him to actually open it & lean in to get laptop.

Reason for a saloon over a hatch?

[tenpenceshort]

stuthemong said:

I see this, thanks again.

I guess it comes down to my point / question, of what would happen if an officer asked for my breath in a pub? Do police have right to ask any person at any place at any time for a mandatory breathalyser test, or do certain requirements have to be met?

The power to request the preliminary breath test is in s6 Road Traffic Act.

To paraphrase, if an officer reasonably suspects you are driving or have been driving under the influence, or that you have committed a moving traffic offence, he can require a breath test. If he reasonably believes you have been involved in an accident where you were driving or in charge he can require the same.

If you were in the pub, an officer cannot require you to give a breath test unless he has either the relevant suspicion or belief- he can't just walk in and start asking for samples because you're in a pub.

[Snowboy]

Something that may be relevant is that normally people refuse because they don't want to be proved drunk.
Your mate is admiting he was drunk.

He wasn't protesting he was not drunk.
He was protesting that he wasn't driving.

It's not much of an argument in the face if the absolute offence.
But it might be enough if there are other helpful factors too.

[tenpenceshort]

Snowboy said:

It's not much of an argument in the face if the absolute offence. But it might be enough if there are other helpful factors too.

'Enough' for what? In terms of a defence it would be irrelevant and the court wouldn't take any account of it (assuming it was agreed the officer had the requisite suspicion).

The prosecution don't have to prove that the defendant intended to drive or was driving, just that the officer requiring the breath test had a reasonable suspicion he did or had.

[ED209]

stuthemong said:

I see this, thanks again.

I guess it comes down to my point / question, of what would happen if an officer asked for my breath in a pub? Do police have right to ask any person at any place at any time for a mandatory breathalyser test, or do certain requirements have to be met?

certain requirements have to be met -
Power to administer preliminary tests

(1)If any of subsections (2) to (5) applies a constable may require a person to co-operate with any one or more preliminary tests administered to the person by that constable or another constable.
(2)This subsection applies if a constable reasonably suspects that the person—
(a)is driving, is attempting to drive or is in charge of a motor vehicle on a road or other public place, and
(b)has alcohol or a drug in his body or is under the influence of a drug.
(3)This subsection applies if a constable reasonably suspects that the person—
(a)has been driving, attempting to drive or in charge of a motor vehicle on a road or other public place while having alcohol or a drug in his body or while unfit to drive because of a drug, and
(b)still has alcohol or a drug in his body or is still under the influence of a drug.
(4)This subsection applies if a constable reasonably suspects that the person—
(a)is or has been driving, attempting to drive or in charge of a motor vehicle on a road or other public place, and
(b)has committed a traffic offence while the vehicle was in motion.
(5)This subsection applies if—
(a)an accident occurs owing to the presence of a motor vehicle on a road or other public place, and
(b)a constable reasonably believes that the person was driving, attempting to drive or in charge of the vehicle at the time of the accident.
(6)A person commits an offence if without reasonable excuse he fails to co-operate with a preliminary test in pursuance of a requirement imposed under this section.
(7)A constable may administer a preliminary test by virtue of any of subsections (2) to (4) only if he is in uniform.

[Snowboy]

Enough for a judge or magistrate to decide it's not worth punishing.
Or enough for the cps to decide it's not worth pursuing perhaps.

If the OP is accurate the driver wasn't in the car or even at the door.
He was standing in front of the car.

If it can be shown he wasn't in charge if the vehicle then the breath test shouldn't have been requested in the first place.

It's clutching at straws.
But I'm just playing the part of the defence rather than the prosecution.

[stuthemong]

Thanks, TenPenceShort and SnowBoy. Very useful prose, and confirms the right to demand the breath specimen. I don't think it would be feasible to argue out of the suspicion as justification for asking for it. Seems harsh given the reason for the absolute offence existing to catch-all for those obstructing whilst driving...

RTA Part I Motor Vehiles: drink and drugs
http://www.legislation.gov.uk/ukpga/1988/52/sectio...

4 Driving, or being in charge, when under influence of drink or drugs.

(1)A person who, when driving or attempting to drive a [F1mechanically propelled vehicle] on a road or other public place, is unfit to drive through drink or drugs is guilty of an offence.
(2)Without prejudice to subsection (1) above, a person who, when in charge of a [F1mechanically propelled vehicle] which is on a road or other public place, is unfit to drive through drink or drugs is guilty of an offence.
(3)For the purposes of subsection (2) above, a person shall be deemed not to have been in charge of a [F1mechanically propelled vehicle] if he proves that at the material time the circumstances were such that there was no likelihood of his driving it so long as he remained unfit to drive through drink or drugs.

So under (3) - I think he could prove the latter as he was getting a lift home. This is the normal legal 'get-out clause' for those who test +ve but aren't going to drive and makes sense.

I now need to find the terms relating to the breathalyser test results and what it means......

[stuthemong]

Thanks, ED - useful stuff that - you got a link?

edit - seciton 6 - got it http://www.legislation.gov.uk/ukpga/1988/52/sectio...

edit2: OK ED, so

>(6)A person commits an offence if without reasonable excuse he fails to co-operate with a preliminary test in pursuance of a requirement imposed under this section.

What is 'an offence'. Where do we find what offence in particular is committed? The offence itself must be defined somewhere, but it's not stated here. Weird.

Edited by stuthemong on Tuesday 22 July 16:24

[CAPP0]

I wonder which side of the car he was opening to reach the keys? Perhaps if he was going in the passenger door it would help - sorry, would have helped, I guess the failure to provide stuffs him.

Then again, donkeys years ago, when D&D was, shall we say, not a "lesser" offence but when it was perhaps not quite so high on the radar (over 30 years ago), someone I knew (and it really was someone else, someone I worked with) was at a girlfriend's house, drinking. His car was outside. They had a row, she threw him out, he climbed into the back of the car to sleep it off. Apparently a neighbour called the BiB and he was done for drunk in charge, despite being in the back of the car, because he had the keys on him. Anyhoo, that's how it was told to me at the time.

[PurpleMoonlight]

stuthemong said:

Thanks, TenPenceShort and SnowBoy. Very useful prose, and confirms the right to demand the breath specimen. I don't think it would be feasible to argue out of the suspicion as justification for asking for it. Seems harsh given the reason for the absolute offence existing to catch-all for those obstructing whilst driving...

RTA Part I Motor Vehiles: drink and drugs
http://www.legislation.gov.uk/ukpga/1988/52/sectio...

4 Driving, or being in charge, when under influence of drink or drugs.

(1)A person who, when driving or attempting to drive a [F1mechanically propelled vehicle] on a road or other public place, is unfit to drive through drink or drugs is guilty of an offence.
(2)Without prejudice to subsection (1) above, a person who, when in charge of a [F1mechanically propelled vehicle] which is on a road or other public place, is unfit to drive through drink or drugs is guilty of an offence.
(3)For the purposes of subsection (2) above, a person shall be deemed not to have been in charge of a [F1mechanically propelled vehicle] if he proves that at the material time the circumstances were such that there was no likelihood of his driving it so long as he remained unfit to drive through drink or drugs.

So under (3) - I think he could prove the latter as he was getting a lift home. This is the normal legal 'get-out clause' for those who test +ve but aren't going to drive and makes sense.

I now need to find the terms relating to the breathalyser test results and what it means......

None of this matters because he has apparently been charged with failing to provide a breath specimen not being in charge of a motor vehicle.

[PurpleMoonlight]

stuthemong said:

Thanks, ED - useful stuff that - you got a link?

edit - seciton 6 - got it http://www.legislation.gov.uk/ukpga/1988/52/sectio...

edit2: OK ED, so

>(6)A person commits an offence if without reasonable excuse he fails to co-operate with a preliminary test in pursuance of a requirement imposed under this section.

What is 'an offence'. Where do we find what offence in particular is committed? The offence itself must be defined somewhere, but it's not stated here. Weird.

Edited by stuthemong on Tuesday 22 July 16:24

The offence is failing to provide a specimen of breath is it not?