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

[Cat]

tenpenceshort said:

If I'm reading it right, the only occasions you would have no power of arrest but an offence to report would be a refusal following a requirement under 6(4) or (5) (involving suspected moving traffic offence or following an accident, respectively), assuming you didn't also suspect drink/drugs in addition to the offence and/or accident. Does this sound about right?

Yep, that pretty much summarises the power of arrest in relation to failing to cooperate with a requirement to undertake a preliminary test.

Cat

[Einion Yrth]

Cat said:

La Liga said:

On a side-note, I was once told if someone refuses but you don't suspect alcohol then you should report on summons at the road side. Any experience of a case like this?

This is correct. The power of arrest in relation to failing to provide a preliminary specimen (RTA 1988 s.6D(2)) only applies where a Constable reasonably suspects a person has alcohol in their body. If there is no suspicion they should be reported for summons.

Cat

Why would you require a breath test if you don't suspect alcohol? That's barking.

[Cat]

Einion Yrth said:

Why would you require a breath test if you don't suspect alcohol? That's barking.

Because the requirement was made as a result of them having been involved in an accident or having committed a moving road traffic offence.

Cat

Edited by Cat on Wednesday 23 July 08:01

[anonymous-user]

Eclassy said:

Like I mentioned earlier there was a case of a protester at Barton Moss who was arrested and charged for failing to provide. The case was dropped. It is an absolute offence so why did the case get dropped? I would have expected the trial to go on and rhen the proteaester enter a defence as it is an absolute offence.

Absolute offence refers to the 'mens rea' i.e. state of mind, not whether defences are available or not. The actual wording of the offence of failing to provide literally states the offence-specific defence.

There are many reasons why no evidence may be offered. The article doesn't mention why so it's worthless. What relevance does it have to the topic other than it's the same offence?

Type R Tom said:

If you are in anyway near / linked to / inside a car regardless of how much you’ve drunk or your intention to drive or not it is always better to provide a sample than refuse?

If you want the defence of being able to show you weren't going to drive, then yes, it's better to.

Type R Tom said:

Does you refusing to provide a sample need to be linked to proving there was an intention to drive? I.e. if you were stopped in the High Street on a night out (nowhere near a car) with your house / car keys and a policeman asks for a breath sample you can’t refuse?

It needs to be linked to reasonable suspicion you're in charge (or whatever reason the officer is requesting it e.g. suspected you had driven into the town centre drunk). It can't be speculative punting. Drunk in charge isn't that common.

Einion Yrth said:

Why would you require a breath test if you don't suspect alcohol? That's barking.

I thought this would come up and it's a good question.

An Xmas drink-driving campaign would come to mind. Where anyone who commits a moving traffic offence is breathalysed as there are more drink-drivers on the road.

[The Surveyor]

Would the OP's friends position be any different if he had admitted being drunk. The 'failure to provide' rule rightly catch those who refuse to give a sample to try and protect their innocence, to avoid giving the evidence that they are drunk. If this guy had said "I'm not driving because I'm absolutely wrecked, drunk as a skunk.... just getting my house key" then there's actually no need for a breath test.

Can you be prosecuted for failing to provide further evidence for something that you have already admitted?

[Dave Hedgehog]

The Surveyor said:

Would the OP's friends position be any different if he had admitted being drunk. The 'failure to provide' rule rightly catch those who refuse to give a sample to try and protect their innocence, to avoid giving the evidence that they are drunk. If this guy had said "I'm not driving because I'm absolutely wrecked, drunk as a skunk.... just getting my house key" then there's actually no need for a breath test.

Can you be prosecuted for failing to provide further evidence for something that you have already admitted?

he would still be drunk in charge

[agtlaw]

tenpenceshort said:

If I'm reading it right, the only occasions you would have no power of arrest but an offence to report would be a refusal following a requirement under 6(4) or (5) (involving suspected moving traffic offence or following an accident, respectively), assuming you didn't also suspect drink/drugs in addition to the offence and/or accident. Does this sound about right?

About right but there is a long established power of arrest where the identify of the suspect isn't established - therefore unsuitable to be reported for summons, and also SOCPA (as previously mentioned) extended the power of arrest to any offence where the necessity test is met. Might be different in Scotland?

[Aretnap]

The Surveyor said:

Would the OP's friends position be any different if he had admitted being drunk. The 'failure to provide' rule rightly catch those who refuse to give a sample to try and protect their innocence, to avoid giving the evidence that they are drunk. If this guy had said "I'm not driving because I'm absolutely wrecked, drunk as a skunk.... just getting my house key" then there's actually no need for a breath test.

Can you be prosecuted for failing to provide further evidence for something that you have already admitted?

Yes. The law requires him to provide a sample of breath, not to provide evidence of his drunkenness.

[The Surveyor]

Dave Hedgehog said:

The Surveyor said:

Would the OP's friends position be any different if he had admitted being drunk. The 'failure to provide' rule rightly catch those who refuse to give a sample to try and protect their innocence, to avoid giving the evidence that they are drunk. If this guy had said "I'm not driving because I'm absolutely wrecked, drunk as a skunk.... just getting my house key" then there's actually no need for a breath test.

Can you be prosecuted for failing to provide further evidence for something that you have already admitted?

he would still be drunk in charge

I Know but the OP's friend is being prosecuted for failure to provide a breath test, not drunk in charge. The wording which has been posted previously about when a breath test can be requested and therefore when a 'failure to provide' could result is based upon the suspicion of the officer. If the drunk actually admits to being drunk, as in "I'm pished occifer.. I don't need to do a breath test" can the officer still insist on a breath test as it's not proving anything that hasn't already been admitted.

[Dave Hedgehog]

The Surveyor said:

Dave Hedgehog said:

The Surveyor said:

Would the OP's friends position be any different if he had admitted being drunk. The 'failure to provide' rule rightly catch those who refuse to give a sample to try and protect their innocence, to avoid giving the evidence that they are drunk. If this guy had said "I'm not driving because I'm absolutely wrecked, drunk as a skunk.... just getting my house key" then there's actually no need for a breath test.

Can you be prosecuted for failing to provide further evidence for something that you have already admitted?

he would still be drunk in charge

I Know but the OP's friend is being prosecuted for failure to provide a breath test, not drunk in charge. The wording which has been posted previously about when a breath test can be requested and therefore when a 'failure to provide' could result is based upon the suspicion of the officer. If the drunk actually admits to being drunk, as in "I'm pished occifer.. I don't need to do a breath test" can the officer still insist on a breath test as it's not proving anything that hasn't already been admitted.

ahh i c

[tenpenceshort]

The Surveyor said:

I Know but the OP's friend is being prosecuted for failure to provide a breath test, not drunk in charge. The wording which has been posted previously about when a breath test can be requested and therefore when a 'failure to provide' could result is based upon the suspicion of the officer. If the drunk actually admits to being drunk, as in "I'm pished occifer.. I don't need to do a breath test" can the officer still insist on a breath test as it's not proving anything that hasn't already been admitted.

Yes, as being told by someone that they are drunk gives them pretty good suspicion that they are.

It would be a pointless law, if it could be avoided by simply agreeing that you are drunk.

[The Surveyor]

tenpenceshort said:

Yes, as being told by someone that they are drunk gives them pretty good suspicion that they are.

It would be a pointless law, if it could be avoided by simply agreeing that you are drunk.

The 'failure to provide' law is there to catch those who are drunk but won't allow the officer to get the evidence to back up his suspicion. If there is an admission of being drunk, the 'being drunk' side of things has already been dealt with, has it not?

[tenpenceshort]

The Surveyor said:

The 'failure to provide' law is there to catch those who are drunk but won't allow the officer to get the evidence to back up his suspicion. If there is an admission of being drunk, the 'being drunk' side of things has already been dealt with, has it not?

6 months later...

"My client, perhaps foolishly in the circumstances, was merely being flippant with the officer. He was not actually drunk and thought the officer had comprehended this"

[agtlaw]

The Surveyor said:

The 'failure to provide' law is there to catch those who are drunk but won't allow the officer to get the evidence to back up his suspicion. If there is an admission of being drunk, the 'being drunk' side of things has already been dealt with, has it not?

Not necessarily. Putting aside refusal / failure for one moment, police officers would be better advised to go for OPL (s.5) rather than unfit (s.4). You would need a specimen to prove OPL.

[The Surveyor]

tenpenceshort said:

6 months later...

"My client, perhaps foolishly in the circumstances, was merely being flippant with the officer. He was not actually drunk and thought the officer had comprehended this"

"so why did you're client admit that he had no intention of driving but was merely retrieving his house key before getting a lift home with his friend.."

I do take your point about the officer gathering evidence though.

[TwistingMyMelon]

Years ago a “mate” of mine and the misses had an argument, after lots of booze

He thought it would be best to sleep in the car in the communal car park , he put the keys in the front door bin and slept on the back seat.

The misses stormed up, grabbed the keys and went to the house, taking the keys so he couldn’t come back in the house, not because she thought he would drive off.
Police turn up, with car doors open, mate about 10 metres from car quite a bit drunk 3am in morning

They go to breathalise mate, but realise they found him 10 metres from car (walking away) doors open and he didn’t have the keys on him and were a bit stuck what to do.
Police stay a bit and support the misses, they then tell her (when mate is in loo) “give him the keys, we will wait round the corner and get him when he drives off after we leave”

Police go , mate and misses give up arguing, mate takes the dogs round the block and sees the police lying in wait (he had no intention of driving anywhere)

Mate doesn’t blame police and feels guilty for wasting their time

Not really relevant to the OP, but anecdotal never the less

[Durzel]

Hypothetically speaking if one had left their house keys in the car after a night out and needed to get them to get home - how would you go about getting them that wouldn't result in being prosecuted for DIC?

(Obviously OP's friend is buggered due to refusing breath sample, being a separate offence)

[shambolic]

Two scenarios for drunk and in charge.
One. Your at a wedding reception and your a cheapskate and the drink is expensive so you have a case of beer and spirits etc in your car (back seat). And every hour you go out to top up.
Could you be done then for drunk in charge?
Two. Campervan and you stop at an overnight layby for dinner and a bottle of red. You are still on a public highway so if the police happened by the layby could you be done as well?

[Trax]

Would any defence saying he was too drunk to comply/understand their request, or the implications of not provided, hold any sway? Especially if he can provide evidence (info from friend going to take him home) that he was not going to drive.

There is a reason Police wait for 'customers' to sober up before questioning, as they are not in a position to be questioned.

[carinaman]

Trax said:

There is a reason Police wait for 'customers' to sober up before questioning, as they are not in a position to be questioned.

If the 'customer' happens to be an off duty officer those doing the questioning may get an earful later.