Failing to Provide

M.A.J. Law are the market leaders in failing to provide offences. Our team of
specialist solicitors have years of experience in representing clients
throughout courts in England and Wales. We are able to explain in
straightforward terms what is likely to happen in your case.
Things we can help you with:
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  • Finding fault with the police procedure
  • Assessing device calibration
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Charged with Failing to Provide a Specimen?

MAJ Law are the nation’s leading motoring defence solicitors. Our team of specialists are experts in challenging evidence and avoiding convictions. In 2016 MAJ Law won 91% of all ‘failing to provide’ cases that proceeded to trial, a result which is hard to beat.


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Failing to provide a specimen is not the same offence as drink driving. In fact, a sober person who has not been driving can be convicted of this offence, as unfair as it sounds. Any person charged with failure to provide should attend the first hearing with an open mind. – Conor Johnstone

The police have a general power to stop any vehicle on the road. However, they do not have the power to conduct random roadside breath tests. To do this they must have reasonable grounds (i.e. a suspicion or belief).  An office may have reasonable grounds if:

  • The motorist commits a moving traffic offence (jumping a red light, driving erratically, etc)
  • The motorist is involved in a road traffic collision
  • The motorist is displaying signs of intoxication (glazed eyes, slurred speech, etc).

If the roadside officer has reasonable grounds to, he may ask you to provide a specimen of breath into a handheld device, or he may arrest you immediately under Section 4 of the Road Traffic Act 1988 (for driving whilst unfit). The purpose of the arrest is to obtain a more accurate specimen from you on the ‘evidential device’ at the police station.

Many police forces hold random stop checks, particularly over the festive season. If the circumstances would not give the officer reasonable grounds to suspect or believe that alcohol had been consumed, then this may render your arrest unlawful. It’s also worth noting that the officer making the requirement for you to provide a roadside test must be in full police uniform.

If you have been charged with failing to provide a specimen you will now be facing the prospect of attending court. No doubt you will be extremely worried about the court process and what will happen to you. You may be thinking of pleading guilty or you may be wondering if there is any possibility of defending the charge. Either way it is vital that you obtain professional advice and consider all your options.

Failing to Provide: Penalties

The penalty for a failing to provide allegation can range from 10 points on your licence to a prison sentence, depending on the circumstances of the offence and the impairment level of the individual. If convicted, it can often mean:

  • Loss of licence for a minimum of 12 months
  • Increased insurance premiums
  • Branded a ‘High Risk Offender’
  • Loss of job
  • A criminal record
  • A DVLA medical before your licence is returned
  • VISA and possible travel restrictions
  • Attendance on the Drink Drive Rehabilitation Course
  • Possible custodial sentence

It’s important to understand that pleading guilty is not your only option. In fact, there could be a number of options available to you, depending on the exact circumstances of your case. Please see the table below for the sentencing guidelines used by the Magistrates Court for the offence of failing to provide a specimen.

Nature of activity Starting point Range Disqualification Disqualification 2nd offence in 10 years
 Moderate level of impairment and no aggravating factor Band C fine Band  C fine  12 – 16 months 36 – 40 months
Moderate level of impairment and one or more aggravating factors Band C fine Band C fine 17  -22 months 36 – 46 months
High level of impairment and no aggravating factors  Medium level community order low level community order to high level community order 23  -28 months 36 – 52 months
High level of impairment and one or more aggravating factors 12 weeks custody High level community order to 26 weeks custody 29 – 36 months 36 – 60 months

Reasonable Excuse

Failing to provide a specimen is a serious offence, which is why the knowledge and expertise of a specialist solicitor is recommended. It’s crucial that we consider why you failed to provide, and build your defence around that. If your failure was reasonable, you may have a full defence. This is known as reasonable excuse. Here at M.A.J. Law, we have won many ‘failing to provide’ cases over the years by raising a reasonable excuse. Below is a list of just some of the ways that a defence could be raised:

  • A physical injury (e.g. bruised or broken jaw, dental issue, etc)
  • A blocked or defective intoxilyzer mouthpiece
  • A fault with the device (even if not apparent at the police station)
  • A lack of understanding or a mental incapacity (even if ‘brought on’ by alcohol)
  • A genuine phobia
  • Confusion, depression, anxiety, incomprehension, mental stress, etc
  • A procedural error

There’s a chance that you may have a reasonable excuse defence without knowing it. If you do, and your defence is successful, the court will not convict you.

There is little incentive in entering a guilty plea before you’ve had the opportunity to check the evidence against you. Your disqualification will not be reduced by entering an ‘early’ guilty plea. – Marcus Johnstone

Pleading ‘Not Guilty’ to Failing to Provide

It is the belief of many that their sentence will be reduced or waived if they plead guilty to failing to provide a specimen at the first court hearing. Unfortunately, this is not necessarily true. There is no guarantee that your sentence will be reduced by a guilty plea, which means that you have little to gain by pleading guilty at the first hearing. You may have much more to gain by pleading not guilty.

M.A.J. Law will be able to identify and create a personalised defence strategy for your case, which is typically done before the first court hearing. This allows us to safeguard your position, and advise you of the best way to plea from the offset. We have access to senior solicitors, barristers and expert witnesses, with whom we will hold a case conference regarding your situation.

Be pleading ‘not guilty’ to failing to provide, you have a chance of winning your case or it being dismissed from court – a luxury you are not afforded if you plead ‘guilty’ right away. In any case, it is better to instruct a solicitor sooner rather than later, in order to secure the best outcome for your case.

Pleading ‘Guilty’ to Failing to Provide

The CPS rely on people entering a guilty plea at the first court hearing. By doing so, you are accepting that you are guilty of the offence – without really knowing if you legally are. By pleading guilty, you don’t have the chance to explore the technicalities of your case, and check that all evidence against you is in order.

Simply failing to blow into the evidential test device at the police station does not make you guilty. It’s important to consider all aspects of the offence from the time of your arrest to the time of your release, and that’s where the experience of a specialist solicitor can come into play. For example, it’s unlikely that you’re familiar with the statutory provisions that the police have to comply with during the evidential test at the police station. If they fail to comply with these procedures (and quite often they do), then you should not be convicted. If you enter a guilty plea on the first court date, you are accepting that the police complied with each and every statutory and recommended provision – with knowing and without checking. This is precisely what the CPS rely on.

Even if you are still considering entering a guilty plea, M.A.J. Law can help. For instance, by highlighting recent case law, we may be able to convince the CPS to give you 10 points, rather than a mandatory disqualification. Whatever your decision, our team will use their expertise to secure the best possible outcome in your case.

Any initial advice we give over the phone is completely free of charge. For instance, you may also want to learn more about special reasons and mitigation, as they could be applicable in your case. Our team of specialist solicitors have the knowledge, experience and expertise to help you build a successful defence, and achieve the best possible result.

The Cost of Failing to Provide

MAJ Law are completely transparent about our fixed fee pricing structure and any potential costs that might be incurred throughout the case, so please don’t be afraid to ask. Our quoted fixed fees will not change, even if the case becomes more complicated than originally anticipated. Over the years, our team of specialist solicitors have built long-lasting, honest and trustworthy relationships with our clients. This has helped us become the leading motoring defence solicitors in the UK. MAJ Law also employs a number of Cost Recovery Administrators who will process your Defence Costs Order immediately. This allows you to claim back your costs from the Central Funds Office of the Government (subject to assessment).

What to do next

If you’ve been accused with failing to provide a specimen – whether one of blood, breath or urine – then your next step is likely to be finding the right solicitor to handle your case. Because failure to provide is such a serious offence, and could have the potential to result in a prison sentence, it’s essential that you choose the right solicitor for the job. There are a number of factors that can define what makes a solicitor ‘right’ for you, for instance:

  • A specialist in motoring law
  • In depth knowledge of drink driving law
  • Experience & success in similar cases
  • Evidence of past case successes (e.g. in the form of testimonials)
  • Weekend availability
  • Connections with specialist barristers and expert witnesses
  • Fixed prices, and no initial charge for advice

If the solicitor you’re considering is lacking in any of the above areas, then it could be beneficial to explore other options.


Could you benefit from expert advice?

M.A.J. Law’s specialist solicitors have years of experience representing clients in drink driving cases across England and Wales. Get in touch today to take advantage of your free consultation

0151 422 8020

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