Can I speak to a lawyer before providing a sample to the police for drink driving?

In England and Wales, failing to provide a sample of breath, blood or urine when required by the police is a serious offence that can lead to severe consequences.

Under the Road Traffic Act 1988, if the police have reasonable suspicion that a driver is under the influence of drugs and/or alcohol, they have the power to request a sample of breath, blood or urine from you. At the roadside, the sample will be breath and the device a screening device. At the police station, when excess alcohol is suspected, the sample will in the first instance be via a breathalyser test or, if the breathalyser device is unavailable or unreliable, the sample may be blood or urine. Where drugs are suspected the sample will be blood.

Refusing to provide a sample when requested by the police without a reasonable excuse is an offence. The penalties for failing to provide a sample in the police station will include a mandatory lengthy disqualification plus a fine, community order and possibly a prison sentence. The length of the disqualification and the severity of the punishment will depend on several factors but most importantly the level of the driver’s apparent impairment.

What is considered a reasonable excuse?

The defence of reasonable excuse may be available, depending on the circumstances of the case. If you have a genuine medical condition that would prevent you from providing a sample, this might amount to a valid defence. If a specimen of blood is required, a medical reason might include a phobia of needles or because of a mental health condition. You would, however, need to support this defence by producing cogent medical evidence. You would also need to raise it at the time.

Under the legislation, the police must warn you that you will prosecuted if you fail to provide a sample. If the police did not inform you of this, your case could be challenged on the grounds of procedural error. In practice though, the police follow the procedure step by step as set out in a Home Office produced procedure document. To avoid them forgetting several crucial procedural steps.

I wanted legal advice before providing a sample...

Naturally, when the police request to take a sample from you, you may wish to obtain legal advice before proceeding. Typically, when a suspect is arrested and held in custody, s.58 PACE provides that they have a right to consult with a solicitor in private at any time. If a suspect does request legal advice, they must be permitted to consult with a solicitor as soon as is practicable. However, refusing to provide a specimen until you have spoken to your solicitor does not constitute a reasonable excuse, because the courts have said that the delay in contacting your solicitor will impede the investigation, allowing the suspect to metabolise the alcohol that he or she has consumed.

In recent case Thomas v Director of Public Prosecutions [2024] EWHC 3259 (Admin), the High Court rejected an appeal against conviction for failing to provide a breath sample, despite being the police being found in breach of the defendant’s right to request legal advice from a solicitor. The facts of the case are simple. The appellant was arrested after providing a positive roadside breath test, and transported to the police station. Once his detention was authorised at the police station, he requested to speak to his solicitor. The police wished to conduct the breathalyser test and warned him that he was at risk of being prosecuted if he did not comply. The police refused to delay the procedure to allow him to speak to his solicitor despite repeated requests. The procedure began, the suspect failed to provide a specimen and he was later charged with the offence of failing to provide a sample.

During the trial, it was argued that evidence of the refusal should be excluded due to an alleged breach of s.58 PACE. Whilst the District Judge accepted there was a failure by the police to allow him to speak to his solicitor, it was stated that any solicitor would have advised their client to perform the procedure, and it was a deliberate decision not to proceed with the procedure, therefore making the evidence admissible. He was then convicted of the offence.

On an appeal from the magistrates’ court to the High Court, the conviction was upheld.

What are the penalties for failing to provide a sample?

If convicted of the offence, any penalty you may face depends on the circumstances and the level of seriousness of the case. The court will also consider various factors such as whether you have any previous convictions or driving disqualifications.

In the less serious cases, you may face a fine or community order, and between 12 – 16 months disqualification from driving. In the more serious, you could face a term of imprisonment of up to 6 months and a discretionary disqualification of up to 3 years.

If you have been convicted of a drink driving offence within the previous 10 years, the penalties would be much more severe.

If you find yourself facing any driving offence, it is absolutely vital to contact a solicitor as soon as possible to obtain expert legal advice. You are entitled to free representation at the police station, although many choose to have a privately funded representative and legal aid may be available for your case at the magistrates’ court.

Please contact us if you face investigation or prosecution for a drink or drug drive offence.