Failure to produce sample

Convicted Driver Insurance
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jon-gou

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Good morning,

My daughter was arrested for drink driving last night.

On arrival at the police station she was breathalysed and blew over the limit. Upon attempting the second sample the machine failed on six occasions leading to accusations by the officer that she was failing it deliberately. She was not offered the option of a blood or urine sample and taken to a cell.
This morning upon release her paperwork says she's also being charged with failure to produce a sample, which she maintains isn't the case.
What can be done?
 
I think the case will be that your daughter failed on 6 occasions, rather than the machine failed. If the machine itself fails then it cuts out and will not allow one further effort, let alone 6.
Do you know what the first reading was?
The allegation is that she failed to provide two samples of breath “without reasonable excuse”.
Does she have asthma or any other medical condition that could cause her problems?
If so, did she tells the police about her problems when they booked her in to custody?
Does she have any medical records that would back up any medical condition?

You only have her account to go by. What you can do is to get her to apply to the police station that she was detained at for a copy of her custody record and the custody video relating to her detention.
You will then be able to see the procedure for yourself.
The machine is specific as to the amount of breath that has to be blown in to it, and the length of time she has to blow for, so she either blew too gently or stopped before she was supposed to each time. I would imagine that the custody video will show the officer encouraging her to blow, and explaining what she was doing wrong.
If you still feel, after viewing the custody video, that she did try hard enough or has a medical condition that prevented her doing so then you should then consult a solicitor with a view to pleading not guilty.
If you speak to a solicitor now, you will only be paying him to do what I have outlined above anyway, so do your own homework first.
 
price1367 said:
I think the case will be that your daughter failed on 6 occasions, rather than the machine failed. If the machine itself fails then it cuts out and will not allow one further effort, let alone 6.
Do you know what the first reading was?
The allegation is that she failed to provide two samples of breath “without reasonable excuse”.
Does she have asthma or any other medical condition that could cause her problems?
If so, did she tells the police about her problems when they booked her in to custody?
Does she have any medical records that would back up any medical condition?

You only have her account to go by. What you can do is to get her to apply to the police station that she was detained at for a copy of her custody record and the custody video relating to her detention.
You will then be able to see the procedure for yourself.
The machine is specific as to the amount of breath that has to be blown in to it, and the length of time she has to blow for, so she either blew too gently or stopped before she was supposed to each time. I would imagine that the custody video will show the officer encouraging her to blow, and explaining what she was doing wrong.
If you still feel, after viewing the custody video, that she did try hard enough or has a medical condition that prevented her doing so then you should then consult a solicitor with a view to pleading not guilty.
If you speak to a solicitor now, you will only be paying him to do what I have outlined above anyway, so do your own homework first.
Click to expand...
Thank you for that, sound advice.
Is it a written request that should be submitted or can this be done via the phone.?
 
Written request only. Give personal details and the relevant time / date, address it to “the officer in charge, Police station XXX town
 
jon-gou said:
Thank you for that, sound advice.
Is it a written request that should be submitted or can this be done via the phone.?
Click to expand...

jon-gou

When I was arrested for DUI in 2019, I was taken straight into the intoxilyser room in the custody suite at the police station, immediately after being booked in by the Custody Sergeant.

Blowing into the machine is actually quite hard for many people, especially when you are very drunk and you cannot muster enough oxygen in your system to keep blowing into the tube - it feels like it lasts forever until you hear the bleep on the machine. Then you have to do it again!!!!

I can imagine your daughter was in a very distressed state too which cannot help in being able to concentrate and blow into the machine. What sometimes happens, is that the custody staff will make a few attempts to get two valid readings, however if only one is provided, it is still classed as 'failing to provide' because they need two readings for prosecution purposes.

Blood and urine samples can only be taken in police custody by a Doctor. However, doctors are not always available to attend police custody. If there is a fully functioning intoxilyser machine available, the Custody Sergeant will usually only defer the detainee (the arrested driver) for a blood or urine sample if they declare a valid reason for not being able to use the intoxilyser machine - for example they may have asthma.

From my own experience, of being nicked for DUI, the police are usually quite thorough with the procedure. Over the years many people have challenged loop holes in the procedure when it goes to court, so the police are generally water tight with everything that is asked and written down.

Price1367 has provided some sound advice here about what you need to do next, so I won't rain on his parade. I just wanted to add my own advice and experience. I wish you and your daughter all the best.

CJ
 
I agree with CJ, and add that the machine only remains ‘live’ for about 3 minutes for the 2 samples to be provided. There can be multiple tries in that time but 2 valid ones have to be produced, where the police rely on the lower of the 2 to prosecute. That is why I asked what the only breath sample provided was. Whilst it it not evidence, there is a very good chance that the prosecutor will slip it in to the evidence to court as an indicator of how drunk the daughter was, and quite possibly the reason why she could not provide 2 samples..
 
price1367 said:
I agree with CJ, and add that the machine only remains ‘live’ for about 3 minutes for the 2 samples to be provided. There can be multiple tries in that time but 2 valid ones have to be produced, where the police rely on the lower of the 2 to prosecute. That is why I asked what the only breath sample provided was. Whilst it it not evidence, there is a very good chance that the prosecutor will slip it in to the evidence to court as an indicator of how drunk the daughter was, and quite possibly the reason why she could not provide 2 samples..
Click to expand...
Well exactly : and I speak as someone who failed to provide ! As stated in CJ post « it is quite hard to blow when under the influence etc » : there we have it: at least in my case. I guess if the person genuinely and realistically thinks they were not over the limit , then go for it and argue perhaps . However , what were the circumstances of the arrest etc . I was so ashamed of myself and relieved in Court when the prosecution offered a benign account of my state : they could have gone to town . However , that was me .
 
Hi,

Failing to provide was my situation, if you know that you were not "Drunk" plead not guilty. But if you were ask yourself is it worth it?

Kind regards,




Stu
 
stu12341234 said:
Hi,

Failing to provide was my situation, if you know that you were not "Drunk" plead not guilty. But if you were ask yourself is it worth it?

Kind regards,




Stu
Click to expand...
One thing I learned as someone who had to wait over 5 months for blood results & then to be formally changed, once you “accept the crime you can do the time —“ in other words you can start to move on. If your daughter can 100% guarantee she was under the limit & do check glass sizes ok , but if not accept & don’t waste energy fighting. Sound harsh but it helped me - after the long wait once over you start to move on & deal with everything
 
It need to be appreciated that there is no point in this lady trying to prove she was not ‘drunk’ or even to prove that she had not been drinking at all.

The allegation is that she ‘Failed to provide a sample without reasonable excuse’.
When the allegation is that someone drove whilst over the legal limit, the police have to prove ‘beyond reasonable doubt’ that the person drove a motor vehicle.
When the allegation is that someone failed to supply a sample ‘without reasonable excuse’, then the police only have to reasonably suspect that the person was the driver and reasonably suspect that they had alcohol in their system.

So the case does not fail even if there was video evidence of a person not drinking (is that possible?) or someone else admitted driving, not the accused. The case is about what evidence the police had to reasonably suspect a person of driving (was it reasonable, in other words), what evidence the police had to reasonably suspect the person had consumed alcohol and proof (beyond reasonable doubt) that the person failed to supply.
Then it is up to the defence to show that there was good reason for failing to supply ‘on the balance of probability’.
If they cannot do that, the person is guilty.
 
Thanks for the responses.
17 month ban, £802 financial hit plus solicitor bill of £300. I feel the solicitors fees were money well spent as it projected a positive impression, not just in his words but her commitment to be reperesented.
She has the option of doing the rehabilitation course so hopefully will be behind the wheel by 4th December2022.That's going to be some insurance quote!
There were mutterings of her being tagged but was proved impractical due to her occupation as a teacher.
 
That was a decent result. They decided that she failed to supply - without a decent excuse, but there was no particular evidence that she was heavily intoxicated…… then gave her the minimum for that sentencing bracket.
 
jon-gou said:
Good morning,

My daughter was arrested for drink driving last night.

On arrival at the police station she was breathalysed and blew over the limit. Upon attempting the second sample the machine failed on six occasions leading to accusations by the officer that she was failing it deliberately. She was not offered the option of a blood or urine sample and taken to a cell.
This morning upon release her paperwork says she's also being charged with failure to produce a sample, which she maintains isn't the case.
What can be done?
Click to expand...
price1367 said:
That was a decent result. They decided that she failed to supply - without a decent excuse, but there was no particular evidence that she was heavily intoxicated…… then gave her the minimum for that sentencing bracket.
Click to expand...
Good Morning,

Please I need advice. I had a similar case but a bit different.
I was driving to work and was pulled over by the police that a member of the public reported that I was driving erratically. Personally, I felt that it was not true because the location police told me that my driving was not good and the place police hide on a corner is less than 2 minutes. I explained to police that I saw them following me when I over took a car infront of me that was driving fast and I am the last car that made the over taking. Police also over take the car that was not moving fast and followed me for like 40 seconds and stopped me.
I repeatedly asked why I was pulled, again he told me that member of the public reported of my registration number, and it is confidential to disclose the person reported; this was happening at about 7.30pm when England is playing with USA in the World Cup 2022.
I was asked to breathalysed and I tried 3 times and it did not registered; police handcuffed and arrested me and asked me to try again while I’m on handcuffed; I told him to removed the handcuff that I’m not comfortable and balanced, he said no and they took me to the station to use the machine in the station.
At the station I tried but only one was registered and it was 0.005 out of 0.035 of legal limit; even before the results came out I pleaded with them several times and asking for more time to produced more samples as I don’t know why it was not registered.
I don’t think I have a medical problem.
Police was surprised when my first sample reads 0.005, even with that result, I was charged to fail to provide samples without reasonable excuse.
They took me back with their van on that night and drive me back to my car as they knew that I wasn’t drunk because of my first sample result they had.
They make sure that I drove my car before them leaving the scene.
I did not asked for the blood/ urine samples because I don’t know the procedure and I was scared.
They also asked to get a solicitor, this was when they allowed me to drive my car that night.
The whole exercise happened within 1hr 30mins.

Please any advice on this would be appreciated as my court case is on December 12th
 
Geo22 said:
Good Morning,

Please I need advice. I had a similar case but a bit different.
I was driving to work and was pulled over by the police that a member of the public reported that I was driving erratically. Personally, I felt that it was not true because the location police told me that my driving was not good and the place police hide on a corner is less than 2 minutes. I explained to police that I saw them following me when I over took a car infront of me that was driving fast and I am the last car that made the over taking. Police also over take the car that was not moving fast and followed me for like 40 seconds and stopped me.
I repeatedly asked why I was pulled, again he told me that member of the public reported of my registration number, and it is confidential to disclose the person reported; this was happening at about 7.30pm when England is playing with USA in the World Cup 2022.
I was asked to breathalysed and I tried 3 times and it did not registered; police handcuffed and arrested me and asked me to try again while I’m on handcuffed; I told him to removed the handcuff that I’m not comfortable and balanced, he said no and they took me to the station to use the machine in the station.
At the station I tried but only one was registered and it was 0.005 out of 0.035 of legal limit; even before the results came out I pleaded with them several times and asking for more time to produced more samples as I don’t know why it was not registered.
I don’t think I have a medical problem.
Police was surprised when my first sample reads 0.005, even with that result, I was charged to fail to provide samples without reasonable excuse.
They took me back with their van on that night and drive me back to my car as they knew that I wasn’t drunk because of my first sample result they had.
They make sure that I drove my car before them leaving the scene.
I did not asked for the blood/ urine samples because I don’t know the procedure and I was scared.
They also asked to get a solicitor, this was when they allowed me to drive my car that night.
The whole exercise happened within 1hr 30mins.

Please any advice on this would be appreciated as my court case is on December 12th
Click to expand...

Whether you were drunk or not is irrelevant. Seems like a slam dunk case for failure to provide, I'm afraid
 
Geo22 said:
Good Morning,

Please I need advice. I had a similar case but a bit different.
I was driving to work and was pulled over by the police that a member of the public reported that I was driving erratically. Personally, I felt that it was not true because the location police told me that my driving was not good and the place police hide on a corner is less than 2 minutes. I explained to police that I saw them following me when I over took a car infront of me that was driving fast and I am the last car that made the over taking. Police also over take the car that was not moving fast and followed me for like 40 seconds and stopped me.
I repeatedly asked why I was pulled, again he told me that member of the public reported of my registration number, and it is confidential to disclose the person reported; this was happening at about 7.30pm when England is playing with USA in the World Cup 2022.
I was asked to breathalysed and I tried 3 times and it did not registered; police handcuffed and arrested me and asked me to try again while I’m on handcuffed; I told him to removed the handcuff that I’m not comfortable and balanced, he said no and they took me to the station to use the machine in the station.
At the station I tried but only one was registered and it was 0.005 out of 0.035 of legal limit; even before the results came out I pleaded with them several times and asking for more time to produced more samples as I don’t know why it was not registered.
I don’t think I have a medical problem.
Police was surprised when my first sample reads 0.005, even with that result, I was charged to fail to provide samples without reasonable excuse.
They took me back with their van on that night and drive me back to my car as they knew that I wasn’t drunk because of my first sample result they had.
They make sure that I drove my car before them leaving the scene.
I did not asked for the blood/ urine samples because I don’t know the procedure and I was scared.
They also asked to get a solicitor, this was when they allowed me to drive my car that night.
The whole exercise happened within 1hr 30mins.

Please any advice on this would be appreciated as my court case is on December 12th
Click to expand...
A confusing story. So you didn’t provide a road side sample and only managed one at the station. This looks like you have made a horrible error of judgment as you will be charged with failing to provide. Unless you have medical reasons; the ban will be a couple of years AND you are a classed as HRO when getting your license back. I hope the 12th goes ok for you
 
Geo22 said:
Good Morning,

Please I need advice. I had a similar case but a bit different.
I was driving to work and was pulled over by the police that a member of the public reported that I was driving erratically. Personally, I felt that it was not true because the location police told me that my driving was not good and the place police hide on a corner is less than 2 minutes. I explained to police that I saw them following me when I over took a car infront of me that was driving fast and I am the last car that made the over taking. Police also over take the car that was not moving fast and followed me for like 40 seconds and stopped me.
I repeatedly asked why I was pulled, again he told me that member of the public reported of my registration number, and it is confidential to disclose the person reported; this was happening at about 7.30pm when England is playing with USA in the World Cup 2022.
I was asked to breathalysed and I tried 3 times and it did not registered; police handcuffed and arrested me and asked me to try again while I’m on handcuffed; I told him to removed the handcuff that I’m not comfortable and balanced, he said no and they took me to the station to use the machine in the station.
At the station I tried but only one was registered and it was 0.005 out of 0.035 of legal limit; even before the results came out I pleaded with them several times and asking for more time to produced more samples as I don’t know why it was not registered.
I don’t think I have a medical problem.
Police was surprised when my first sample reads 0.005, even with that result, I was charged to fail to provide samples without reasonable excuse.
They took me back with their van on that night and drive me back to my car as they knew that I wasn’t drunk because of my first sample result they had.
They make sure that I drove my car before them leaving the scene.
I did not asked for the blood/ urine samples because I don’t know the procedure and I was scared.
They also asked to get a solicitor, this was when they allowed me to drive my car that night.
The whole exercise happened within 1hr 30mins.

Please any advice on this would be appreciated as my court case is on December 12th
Click to expand...
JamesH2122 said:
Whether you were drunk or not is irrelevant. Seems like a slam dunk case for failure to provide, I'm afraid
Click to expand...
Do you mean that the chances of winning is low?
 
WinterSnow said:
A confusing story. So you didn’t provide a road side sample and only managed one at the station. This looks like you have made a horrible error of judgment as you will be charged with failing to provide. Unless you have medical reasons; the ban will be a couple of years AND you are a classed as HRO when getting your license back. I hope the 12th goes ok for you
Click to expand...
I tried to provide samples at the road side but it was not registered, that is why I was arrested and took to station. I asked for more more opportunities and they wouldn’t let me do the trials. I had suffered Covid 2 times, that would have been the reason my samples won’t registered and I always have a blocked nostril if lied on my side. I have arranged for medical examination.
 
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