Failure to Provide Specimen Case Study

13 December 2017

The Client

The client was a 30-year-old male, father of two and main breadwinner within his household (his partner worked p/t and looked after their 2 young kids, one of whom is 18month old).
He had a small business which he had only recently started this year, which did subcontract works for BAE systems, and employed a team of 4 people

The Charge

s.6 RTA- failure to provide roadside preliminary breath test, and
s.7 RTA failure to provide specimen at station

The facts

An anonymous tip-off was sent to police that there was a drunk driver in a carpark in Barrhead who had crashed his car and it was lying abandoned on the pavement. When the police arrived they found the accused in the driver’s seat, engine running, and an empty bottle of alcohol in the back seat. The accused contended that his friends had left the containers there subsequently, and he was moving his car as his tyre had burst… the police believing the client to have been driving whilst under the influence of alcohol required to provide a specimen at the roadside… which the client attempted but was unsuccessful. The police took him back to the station and asked him to provide a further specimen, which he did not take, and he was subsequently cautioned and charged, and held in custody to appear in court on the Monday morning…

The Approach

The client contended that had made significant attempt to provide at the roadside, and it appeared that the police did not know what they were doing it seemed in relation to the equipment that required to be used. ION addition to this, when he got back to the station he had not been warned about the consequences of failing to refuse a breath specimen at the police station. He simply believed that the police did not know what they were doing, and upon challenging them about this they simply cautioned him and charged him, without affording him a reasonable opportunity to provide a specimen or warn him as to the consequences for failing to provide. Many clients will often say this, and it is very difficult to prove that the client had made significant attempts at the roadside.

Importantly, in this case, we ascertained that the officer who led the enquiry was a probationary officer within their first 6 months of service, suggesting that their inexperience may indeed by an important factor to consider. In instances like this, there are police procedures which are carried out so as to ensure police provide all the relevant statutory warning and comply with all issues of fairness to the accessed when taking a sample. Upon further investigation, it appears this was not done, and the station procedure was not completed, despite the officers detailing in their statements that it was.

The failure to carry out this important station procedure combined with the relative inexperience of the officer meant that there were serious doubts raised as to whether sufficient warning was given to the client. When this was brought to the attention of the Procurator Fiscal, it was agreed that the PF would further precognose the officer in the presence of the defence solicitor… during which time it quickly became apparent to the crown that they had a difficulty with their case. The PF decided to drop the charges against the accused

The Outcome

The client was looking at losing licence for 1 year min. The client has kept their licence, and his business and family home….. all of which would have been a problem had he lost his licence.

The client has initially been dubious as to whether to challenge police, as he thought the court would never take his side in all of it. And with Christmas coming up and monies tight, then it seemed like a large outlay for little chance of success… he is glad now he paid for an expert.
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The feedback
Client delighted. To say the least.

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