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

[stuthemong]

Hi All,

Ahh, that catch-all prefix....

"A friend" has recently got into a bit of a bind with t'Plod.

-Drove into town.
-Decided to go out drinking, got drunk.
-Arranged for a friend to give him a lift home.
-Went back to car to get house keys.
-Whilst stood at front of car unlocking it, plod pulls up.
-Requests roadside breathalyser test as they suspect he has been / is about to drive
-He explains that he's getting his house key out the car as he's getting a lift home, and is not driving
-Plod still requests breathalyser sample, he refuses
-Arrested for failure to supply and locked up overnight
-Now expecting discretionary 3-12 month ban for failure to provide.

Seems a bit harsh given he was not going to drive, and was merely going to get key out of parked car. His friend knew what he was doing and that he was going to be getting a lift home. He's not the first person to be drunk near a car and getting into bother, and won't be the last, but this is my rough understanding of the legal situation around this:

-People have been able to prove that was no intent to drive whilst being drunk around a car before (e.g. after a party at a house, going outside to get some fresh clothes), but letting friends know that this is the case. In this instance, I believe he would be 'clear', apart from the fact that he failed to provide, which is an absolute offence!

-So had he just blown into the meter, blown high, but mounted a defence of not being in control, I believe he would have a strong case for not being prosecuted for drunk driving.

-That he refused to give a sample complicates things, as it's absolute. But surely it's only absolute if you're in control of a car? Otherwise an officer could just breathalyse me in a pub, tell me I'm over the limit, and make DD stick. There must be clauses relating to the suspect being in control of a car for the right to demand a breath test to be valid, no?

If anyone can chime in and help with finding the specific bit of law (or give me a pointer where to look) that relates to both 'being in control' of a motor vehicle, and the requirements that need to be fulfilled for a legal request for breathalyser sample to be demanded, that would be useful, as I think that this is the only way for him to avoid a hefty ban. FI know there are some pretty clued up people on here, so even if you could point me in a direction of what to google it would be great. Is this all under the RTA, or some other bit of legislation? Where should I begin to look?

Thank you one and all for any pointers on the matter.

FWIW, yes he has booked in with a Lawyer next week for some advice, but the more information he knows beforehand, the more effective the meeting / advice will be.

Kindest,

Stuart

and no. It's not me, I'm trying to help him out and this is somewhat of an interesting one to contemplate given the issue of failure to provide and control of vehicle - be interesting for me to understand a little more about how this all works

[stuthemong]

Thanks, Purple.

Yup, he's an idiot. If in doubt he should have just called a lawyer then and there to get advise as to what to do. He choose poorly.

[stuthemong]

PurpleMoonlight said:

Drunk people rarely make wise choices .....

And is exactly how I got so much action through uni!

Thanks, Snowboy. Also interesting.

Indeed the story does seem far fetched, he's either lying to me or not, but he has said that he's accepted lifts home from this other guy about 5-8 times before, so he does have 'form' for driving into town, changing his mind re drinking & going out spur of the moment. Single, no kids & self-employed. He can do stuff like this if he wants! May seem a bit more 'spontaneous' than many live their lives, but I can attest he is a bit of loose canon, so the story is not impossible by any stretch!

[stuthemong]

Snowboy said:

The police did everything they should have done.
It's now up to the courts to decide if matey is guilty of anything.

It's like a sort of triage.
The triage nurses are the first line of contact who decide whether someone needs to see a doctor for more tests, xrays or treatment.
Just because it turns out there's nothing wrong it doesn't mean the triage nurse was wrong to send you for more tests.

The cops are like triage nurses, but for crimes rather than illnesses.

Edited by Snowboy on Tuesday 22 July 14:08

Thanks all for your thoughts so far.

Snowboy, this is the nuance here, that had he blown he'd have to try and take the 'not intending to drive' argument, but that he's commited an absolute offence in failure to provide, he can argue all he wants, but it's an absolute offence. 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?

[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

[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?

[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

[stuthemong]

Thanks one and all for your thoughts and assistance here.

I think I've managed to get as much information as I need from this thread, so I'll probably not need to add much to this thread going forward, but if it's of interest to those here who wish to discuss further, by all means carry on.

Note to everyone. Never fail to provide!


Best,

Stuart