failure to provide charge

How can a solicitor help with a ‘Failure to provide’ charge?

Following on from our most recent questions asked, our expert motoring solicitors look at the question; How can a solicitor help with a failure to provide charge?

Given the strict sentencing guidelines surrounding ‘failure to provide’ and the potential threat of a custodial sentence; we would always recommend taking legal advice and instructing a solicitor if you are charged with ‘failure to provide’.

The ‘failure to provide’ offence carries a minimum mandatory driving disqualification which means you will have to attend a court hearing, should you be charged with this offence. It’s important to note failure to provide a sample Is not the same as drink driving.

Whilst you may have initially been stopped under suspicion of drink driving; you are being charged with not providing a sample of breath/blood when requested, not driving whilst under the influence of alcohol. This means even an individual who has not consumed alcohol can be charged with ‘failure to provide’.

In the majority of cases in relation to ‘failure to provide’, the police will state within their witness statement that the Defendant appeared intoxicated. For this reason, it’s vital your instructing solicitor obtains your IDPC (Initial Details of The Prosecution’s Case) and reviews any Body worn / CCTV footage. We have found this is useful to both clarify what events have actually taken place.

There are some defences available for ‘failure to provide’ these include:

Reasonable Excuse Defence

If you had a reasonable excuse for not being able to provide a specimen this would be a relevant defence. This defence is most often used in scenarios where a medical condition (either psychological or physical) is the reason you could not sufficiently provide a sample for analysis. For example, if an individual had a panic attack and was unable to provide a sample due to breathing difficulties.

If this defence was relevant to your case, we would need to evidence your condition to the court so it can be adequately considered. To do this we could begin by obtaining your full medical notes and instructing an independent expert to produce a produce a report, which can be used in court. The expert instructed will depend on the details of your case.

If you were unable to provide a sample as a result of psychiatric condition such as anxiety, a specialist psychiatrist would be instructed to carry out a detailed assessment of the individual condition and subsequently provide the report for the upcoming hearing. If this report reinforces the individuals defence, the report will be used in court to strengthen your defence. In some instances, if there is adequate time between receiving your report and your upcoming hearing, your instructing solicitor can send your report with a DCS to the CPS to try and have the case dismissed prior to the hearing.

A Defence Case Statement outlines the defence’s position, which factors of the case they dispute with the prosecution, evidence of this and the particular facts on which the Defence intends to rely their defence on. This defence would also be relevant if you suffered from a condition such as asthma.

If the Breath Analysis Machine Was Not Working or The Mouthpiece Was Blocked

For this to be a successful defence, an expert report is also most likely going to be needed. The presumption Is that all the machines are in proper working order and are checked regularly. It Is also important to let your instructing solicitor know if you notified the person/s attempting to take your sample the mouthpiece appears to be blocked/faulty.

The Police Officer Only Allowed You One Attempt

If on first request you refuse or are unable to provide sample but change your mind a few moments later and are refused an additional opportunity to provide a sample – you may have a defence. The court may accept this as no refusal if you were not offered ample opportunity to provide.

Each case is different and the above is just a few examples of potential defences that may be available to you. If you have been charged with failure to provide, we would always advise instructing a solicitor as the sentencing for this offence does include a custodial sentence.

If you do not have any relevant defences available to you, a solicitor can still help reduce the sentence you receive by presenting mitigation. To find out more about how this can impact your sentencing read out blog ‘How can presenting mitigation help my case?’. Or call one of our motoring specialists on 0330 912 2124.

Contact us now. Solicitors On Your Side can offer you free advice and consultations.

Contact us today by phoning 0330 912 2124, emailing [email protected], or by using our website by filling out an online form.

If you would like to find out more about recent law changes and news, make sure to visit our Latest Articles page. Our latest articles also cover a range of other topics, such as; motoring offences, personal injury claims, medical negligence claims, occupier’s liability and more.

If you would like updates about our latest articles, follow us on InstagramFacebook and Twitter.

Latest Articles

Our 4 steps to success


Make an initial enquiry

Give us a call or request a call back. We'll listen to your case and provide no-obligation advice.


Your case is accepted

Should we advise your case is worth pursuing, and you choose our services, we will begin case preparation.


We'll work on your case

With your co-operation, we'll work on your case through to completion. You may be required to provide extra evidence.


Successful Outcome

As your Solicitors, we can ensure that your case has the best possible outcome given the circumstances around it.