Insufficient evidence to convict under failing to provide specimens of breath

Posted by Barry Culshaw on
Blake Morgan's Driver Defence team is the leading team of specialist road traffic lawyers in the South of England.  We have been recognised by legal directory Chambers and Partners: A Client's Guide to the Legal Profession 2017 as a Band 1 firm in this field.  Our team of specialist lawyers travel all the country to help motorists facing a driving ban or having penalty points put on their licence. Our work has taken us to Magistrates and Crown Courts all over the country.  Many of our cases have reached the Higher Courts. 
Barry Culshaw, in our Driver Defence team, successfully challenges against failing to provide breath speciments for analysis.

The case

F was arrested on suspicion of driving with excess alcohol at her home address following her involvement in a non-injury road traffic accident nearby. At the police station F was required to provide two specimens of breath in an Intoximeter device for the purposes of analysis. Despite four attempts to provide the specimens F was unable to do so. At the time of attempting to provide the specimens F was greatly stressed by the events.

F was charged by Hampshire Constabulary with one count of failing without reasonable excuse to provide the specimens of breath for analysis contrary to Section 7(6) of the Road Traffic Act 1988 and was bailed to appear before Southampton Magistrates' Court. F sought the advice of Blake Morgan's Motoring Offences Team. F was advised to tender a not guilty plea on the basis that she had a reasonable excuse for failing to provide the specimens in that throughout she had made genuine attempts to provide the specimens, but had been physically unable to do so.

Pursuant to Blake Morgan's advice two expert witnesses were consulted and reports commissioned. The first report was from a forensic scientist who highlighted that during F's attempts to provide the specimens she was blowing for relatively long periods of time and the expert expressed concern that the Intoximeter device did not accept any of the attempts to provide the specimens given the long blow times. The second expert was F's GP who was of the opinion that F's medical history and her anxiety at the time of the breath testing procedure could have been a contributory factor in her inability to provide sufficient breath pressure.

Both experts' reports were lodged with the court and served on the Crown Prosecution Service who had conduct of the proceedings. A defence statement was also lodged and served on the Crown raising secondary disclosure issues relevant to the functionality of the Intoximeter device.

The outcome

The Crown Prosecution Service decided to discontinue the case on the basis that there was insufficient evidence to provide a realistic prospect of conviction. The court granted a defence costs order in F's favour. Barry Culshaw, a consultant and road traffic specialist with Blake Morgan's Driver Defence team, had conduct of the defence case throughout.

F was greatly relieved by the outcome. The offence of failing to provide specimens of breath for analysis without reasonable excuse is punishable with a fine not exceeding £5,000 and / or six months imprisonment. The offence also attracts obligatory disqualification from driving of a minimum period of twelve months. Very often courts impose periods of disqualification well in excess of the minimum mandatory period of twelve months for such offences."

About the Author

Barry Specialises in road transport law within our Driver Defence team. He represents clients facing allegations of careless/dangerous driving, driving with excess alcohol and speeding.

Barry Culshaw
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023 8085 7209

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