Failing to provide a specimen of breath?

Convicted Driver Insurance

Boomer

Member
Hi, I was pulled over by the police and told that somebody had advised them I’d had a drink and drove my car, I drove off from the officer. Later that day the located my car and impounded it. Obviously being the registered keeper I have been to give a volentry interview. The allegations against me are failing to provide a specimen of breath I’m assuming this will be a dr70?? Driving without due care and attention, failing to stop for an officer and obstructing police. I haven’t been charged yet. What are the likely punishment? I have 2 previous dui 8 years ago and 6 years ago. They released my car yesterday and the police paid the charge to release it? I’ve never heard of that before? Thanks
 
The fact that you have two previous drink driving related offences within the last 10 years means that you will face a mandatory minimum 3 year disqualification. Three convictions of this nature within a 10 year period will also put you at serious risk of having a prison sentence imposed. It is very unusual for you to not have to pay to ensure release of your car from the impound.
 
Thanks for your reply, would failing to provide the roadside breath test be applied to the 2 previous 10 year convictions? Or would that just be failing to provide at the police station? From what I’ve read the dr70 conviction is somehow more lenient than the dr30 failing to provide a specimen for analysis?
 
It seems highly likely it will be a DR30. DR70 is for when the police aren't alleging you drove, and only carries 4 points. It is a relatively rare conviction.

As it is it doesn't really matter what code you get because you will almost certainly be disqualified for most or all of the five years until the offence is spent anyway. The exact penalty will depend on whether the court views it as a category one, two or three offence, which have different penalties

https://www.sentencingcouncil.org.u...-analysis-driveattempt-to-drive-revised-2017/

which will depend again on the case the CPS puts forward about your driving at the time. However, it is highly likely they will be considering custody so it is crucial you get legal advice. Even if they can't get the failure to provide dropped they may be able to convince the court you had lower culpability and lesser risk if harm to get any sentence reduced.

You will get legal aid for a solicitor but depending on your means you may wish to instruct your own who will have more time. Obviously your best bet, depending on what you said at interview and statements at the time, is if you can convince the CPS there isn't sufficient evidence you were driving as a DR70 would be hugely advantageous to you
 
Dr70 is failing to supply a screening breath test at the roadside. You cannot get a Dr30 unless you fail to supply an evidential test, which would be at the police station. The punishment for this is 4 points, or a discretionary ban.
As you refused and drove off, I doubt they would consider 4 points.......
I would welcome the thoughts on Sean (solicitor on here) on this: as the offence is failing to supply a screening breath test, under S6 (6) does that not stand outside the parameters of the High Risk Offenders scheme. The scheme talks about failing to supply an Evidential test, which he was not required to do of course because he drive off!
Boomer was presumably subject to the HRO scheme when he got his second conviction 6 years ago, but as failing to provide a roadside breath test seems to fall outside the scope of a Drink Driving conviction pre se, then the previous will be taken into account but this is an offence in its own right?
 
Thanks for the info, I’d be great full of Sean could tell me for certain if the dr70 is under the same penalty as other drink drive offences. Yes price1367 My last conviction 6 years ago came under the hro scheme and I received a 3 year ban. I’m worried about a custodial tbh. I don’t know what came over me to drive off tbh but I’ve just recently lost my mother to cancer and getting over a pretty serious spine operation so have been depressed for the last few months, I’d had 2 shandy’s with a mate of mine because he’s just finished with his Mrs and she reported both of us for drink driving. He’d had a few beers so I dropped him off at a mates and I got pulled over and panicked basically not much else I can say ?.
 
It is correct that a DR70 (DVLA endorsement code for offence of failing to provide a preliminary breath test) would not be considered a relevant previous conviction in the same way.

Section 34 (3) Road Traffic Offender's Act 1988 states:

Where a person convicted of an offence under any of the following provisions of the Road Traffic Act 1988, that is—
(aa)section 3A (causing death by careless driving when under the influence of drink or drugs),]
(a)section 4(1) (driving or attempting to drive while unfit),
(b)section 5(1)(a) (driving or attempting to drive with excess alcohol),
(c)section 7(6) (failing to provide a specimen) where that is an offence involving obligatory disqualification,
(d)section 7A(6) (failing to allow a specimen to be subjected to laboratory test) where that is an offence involving obligatory disqualification;]
has within the ten years immediately preceding the commission of the offence been convicted of any such offence, subsection (1) above shall apply in relation to him as if the reference to twelve months were a reference to three years.

This is aggravated further with a third conviction within the above group within that period but failing to provide a roadside specimen is not one of those. However, the fact that further charges of obstruction and failing to stop could mean that consideration is given to community order being imposed given the suggestion of alcohol being involved. If those are the offences you have been charged with, custody is not a consideration for the court.
 
It’s now been 4 weeks since the alleged offence and I’m yet to hear anything from the police. I have not been charged yet.I’ve got a couple more questions Sean if you wouldn’t mind helping. Firstly what sort of ban would I be looking at? And would I be able to do something other than a community order? I’m recovering from a spine operation and still undergoing recovery treatment. Would this mean that they may consider custody if I couldn’t complete the community order? Also have I got a defence? and is it worth having a specialist solisitor like yourself representing me? I can’t see how I can be accused of refusing to provide a roadside breathtest and also be accused of failing to stop for the police as surly I stopped if they are alledging I refused? I was not told that it would be an offence but I suppose I didn’t give the officer the time to explain before driving off as I wasnt thinking straight and panicked due to my frame of mind over the last couple of months. I only drove 150 yards up the road and pulled into a side road, I then waited there but no police came. I left my vehicle there as I was shaken up and stressed. Thanks for any help.
 
Boomer said:
It’s now been 4 weeks since the alleged offence and I’m yet to hear anything from the police. I have not been charged yet.I’ve got a couple more questions Sean if you wouldn’t mind helping. Firstly what sort of ban would I be looking at? And would I be able to do something other than a community order? I’m recovering from a spine operation and still undergoing recovery treatment. Would this mean that they may consider custody if I couldn’t complete the community order? Also have I got a defence? and is it worth having a specialist solisitor like yourself representing me? I can’t see how I can be accused of refusing to provide a roadside breathtest and also be accused of failing to stop for the police as surly I stopped if they are alledging I refused? I was not told that it would be an offence but I suppose I didn’t give the officer the time to explain before driving off as I wasnt thinking straight and panicked due to my frame of mind over the last couple of months. I only drove 150 yards up the road and pulled into a side road, I then waited there but no police came. I left my vehicle there as I was shaken up and stressed. Thanks for any help.
Click to expand...

If the offences are as you understand then a ban may not be imposed. The offences are committed on the same occasion and you should be penalised for the more serious of the offences. Failing to provide a roadside specimen would result in 4 penalty points being imposed. At this stage, without seeing the papers and detail of the evidence the prosecution intend to rely on, it will not be possible to advise definitively on sentence or defences. If the court considered that this met the threshold for a community order, representations can be made regarding the appropriateness of this given your condition. If the court accepted that a community order was inappropriate then they would likely impose a fine in the alternative, not custody.
 
It’s been 12.5 weeks now and still I havnt heard anything. I havnt been charged with anything or recieved a summons. If you could answer another thing playing on my mind please Sean? Would it be possible for the police to charge driving whilst unfit through drink if they go off a witness statement saying I’d had 5 pints of lager? As my mates ex girlfriend told the police this. He and her are not together now and he thinks she would stick to that account.
 
Boomer said:
It’s been 12.5 weeks now and still I havnt heard anything. I havnt been charged with anything or recieved a summons. If you could answer another thing playing on my mind please Sean? Would it be possible for the police to charge driving whilst unfit through drink if they go off a witness statement saying I’d had 5 pints of lager? As my mates ex girlfriend told the police this. He and her are not together now and he thinks she would stick to that account.
Click to expand...
For there to be a successful conviction for driving whilst unfit through drink, the police would have to establish that your driving was impaired as result of alcohol consumption. Third party evidence describing the manner of your driving and evidence confirming your had been drinking could be enough but it is assessed on a case by case basis and dependent on the quality of the evidence.
 
Thanks Sean. When I attended for the volentary interview there was only an allegation of driving without due care due to a small wheel spin as I pulled away, but along with a statement that said I’d consumed alcohol could they increase this charge to driving whilst unfit? It’s been such a long wait that it’s getting to me now. Is there anything I can be doing to help myself or isit just wait for the police to get back to me?
 
Unfortunately, it is just a waiting game at this stage. There is potential that the police could consider a charge of driving whilst unfit through alcohol given that they have an admission of you having consumed alcohol and there is evidence of your driving being impaired. A full review of the evidence will be required in order to consider the strength of any charge, though.
 
Hi Shaun I’ve recieved a phone call from the police and I’m being reported for failing to provide a roadside breath test. The other charges are not being reported. The police said to expect a letter to attend court within the next 28 days. I don’t know what to expect to be honest. Can I defend that charge as I wasn’t thinking straight at the time and had a lot of personal issues? I’m glad I’ve finally heard something but I’m really unsure what to expect. I appreciate all the help you’ve given so far. Thanks
 
Unfortunately, that would not be a defence. The refusal to provide cannot be defended on that basis. The positive is that a roadside offence is a much lesser offence and will mean you are liable for penalty points.
 
Ok a little update. I recieved the court summons today with one charge of fail to co-operate with a preliminary roadside breath test. No other charges mentioned.
What sort of sentence am I looking at? bearing in mind I have 2 previous drink drives 6 years ago and 8-9 years ago. When I drove off it was 300 meters up the road then I pulled in. The police past me and that was the last I seen of them. Obviously it was a stupid thing to do but I was under a lot of stress at the time losing my mother to cancer a couple of months before and also recovering from a spinal operation. Any help is very much appreciated.
 
The penalty for failing to co-operate with a preliminary (roadside) breath test is a fine and penalty points.
  • Maximum Fine: £1000 (Level 3 Fine)
  • Minimum Fine: Band B Fine (100% of relevant weekly income)
  • Penalty Points: 4 (remains on licence for 4 years)
The previous convictions for drink driving related matters are not relevant to sentence for the offence that you face. Section 34 (3) Road Traffic Offenders Act states:

(3)Where a person convicted of an offence under any of the following provisions of the Road Traffic Act 1988, that is—

(aa)section 3A (causing death by careless driving when under the influence of drink or drugs),]
(a)section 4(1) (driving or attempting to drive while unfit),
(b)section 5(1)(a) (driving or attempting to drive with excess alcohol),
(c)section 7(6) (failing to provide a specimen) where that is an offence involving obligatory disqualification,
(d)section 7A(6) (failing to allow a specimen to be subjected to laboratory test) where that is an offence involving obligatory disqualification;

has within the ten years immediately preceding the commission of the offence been convicted of any such offence, subsection (1) above shall apply in relation to him as if the reference to twelve months were a reference to three years.

The offence that you face does not invite a mandatory ban meaning it is not considered an offence of the same type for the purpose of sentencing.
 
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