Failing to Provide Specimens

Failure to Cooperate with a Preliminary Test under Section 6

The Preliminary Test or Roadside Test is the first stage in assessing whether a driver is over the legal limit for alcohol or under the influence of drink or drugs.  In assessing whether someone has been drink driving the test is usually carried out by means of a handheld electronic device.  Where the police suspect a driver is under the influence of drugs a Field Impairment Test may be used.  Such a test may involve asking a driver to walk in a straight line and taking observations about their appearance, demeanour and their ability to carry out simple counting exercises.  Another preliminary drug test involves taking a sample of saliva or sweat.

Failing the Preliminary Test

If a person fails the preliminary test or refuses to cooperate they will be arrested, taken to a police office and subsequently charged in terms of Section 6 of the Road Traffic Act 1988. A person can only be convicted if the prosecution can prove that the driver failed to cooperate. Failure includes refusal. The prosecution must also prove the driver had no reasonable cause or excuse for failing to cooperate with the preliminary test and that all the proper procedures were carried out. This is usually done by the arresting police officers who will give evidence that the proper procedures were followed and that there was no apparent reason why the driver did not cooperate with the preliminary test. Notwithstanding the police evidence, it is always open to a person charged under this section to claim that they have a Reasonable Excuse for failing to cooperate with the preliminary test.

Penalties

The penalties for failing to cooperate with a preliminary test include:

• A fine; and 
• Discretionary disqualification; or
• 4 penalty points

Police Powers & Procedures

A police officer can request any person to cooperate with a preliminary test if he has reasonable cause to suspect that the person is, or has been, driving, attempting to drive or in charge of a vehicle while under the influence of alcohol or drugs.  The police are also entitled to make such a request where a driver has been involved in an accident.

It is important to note that the legislation does not mean that the police can simply stop a driver at any time and insist on a preliminary test.  Although the police can randomly stop any motor vehicle for a routine check they can only require cooperation with a preliminary test if they then form the opinion that the driver is under the influence.  To this end the police often give evidence to the effect that the manner of driving was erratic, that the driver was unsteady on his feet and that his speech was slurred.

Failure to Provide Specimens for Analysis under Section 7

The requirement to provide a specimen of breath, blood or urine at a police office usually comes about because a person has failed the preliminary roadside test.  The main purpose of this particular requirement is to obtain an accurate measurement of the amount of alcohol in a person’s system.  The reading that is obtained will form the basis of any subsequent sentence that may be imposed.  It is for this reason that failing to provide a specimen is treated as a serious matter and why the courts often impose penalties above the minimum.

Penalties

The penalties for failing to provide a specimen at the police office include:

• A fine and
• Mandatory disqualification of at least 12 months.
• A Community based disposal or imprisonment can also be imposed

The minimum period of disqualification increases to 3 years if a person has a previous drink related conviction within 10 years. If the charge stems from being Drunk in Charge-of a motor vehicle or there is evidence that the person was not driving the court can impose a shorter period of disqualification or endorsement of 10 penalty points.

Procedure at Police Office

At the police office the police will require a driver suspected of driving under the influence to provide two specimens of breath using an approved machine, such as the Intoximeter.  In the normal course of events the police will use a form that provides guidance about the procedure that must be followed.  Information and questions within the form should be read out to the person who is required to provide a specimen and his responses should be noted within the form at the time of the procedure.

The police must warn a person that failure to provide a specimen may render him liable to prosecution.  The police must also provide adequate information about how to provide a specimen of breath.

The Intoximeter machine requires a person to provide a sufficient specimen of breath for the analysis to be carried out. If a person simply blows into the machine for a second or two the amount of breath given is unlikely to be enough for an analysis and may amount to a failure.  Similarly, a person who pretends to blow into the machine or does so in a weak and ineffective manner will be regarded as having failed to provide a specimen.  However, a person must be given a reasonable opportunity to provide a specimen.

A failure to provide a specimen includes a refusal.  If a person refuses to provide a specimen the offence is immediately completed and he cannot thereafter change his mind by offering to provide a specimen.  A driver does not have a right to choose to give a blood or urine sample instead of breath.  A person’s agreement to give a specimen must be unequivocal and without condition.

Other Specimens – Blood or Urine

In certain circumstances the police may require a person to provide a sample of blood or urine as an alternative to breath.  Failure to comply with such a request is also likely to result in criminal proceedings.  Such a requirement can be made where:

• The police have reasonable cause to believe that, for medical reasons, a breath sample cannot or should not be taken;
• No reliable device or machine for taking breath samples is available or it is not practical to use such a device;
• The police have reasonable cause to believe the device has not produced a reliable reading of the level of alcohol;
• Following a preliminary test, the police have reasonable cause to suspect that the driver is under the influence of drugs;
• The police have been advised by a doctor or other medical practitioner that the driver’s condition may be due to drugs.

Defences

A defence of Reasonable Excuse is available for both offences.  What amounts to a Reasonable Excuse will depend on all the facts and circumstances of each case.  A reasonable excuse must be related to a physical or mental inability to provide a specimen or that to do so would involve a serious risk to health.  Examples that might constitute a reasonable excuse and other arguable defences include:

• Pre-existing medical conditions which might prevent a person from providing a specimen of breath,  such as asthma;
• Injuries suffered in an accident;
• Genuine phobias, such as a fear of needles;
• Mistakes in police procedure;
• Faulty breathalyser devices;
• Police conduct that is threatening or aggressive causing anguish and distrust.

Special Reasons not to Disqualify

As with other drink related offences there may be other mitigating circumstances that might persuade a court to refrain from disqualification or even endorsement of penalty points.  These circumstances are called Special Reasons and reference should be made to that section within this site.