In 2015 the government created a new offence of drug driving. For the first time, legal limits were created for commonly abused drugs. The aim, supposedly, was to improve road safety and protect the general public. In reality, the legal limits were created to penalise the use of drugs in England & Wales. At a time when countries around the world are relaxing drug policies, the United Kingdom are doing everything possible to criminalise illicit consumption. The offence of drug driving is not fit for purpose.
Since the offence was first introduced, the number of people being charged with failing to provide (FTP) has increased tenfold. This is because there is now a separate ‘route’ through which someone can FTP, whereas beforehand, all those charged with FTP had been suspected of drink driving.
As new offences are created so too are new defences. We have set out below some of the most common defences we use to win FTP cases.
Look at the wording on your charge sheet. You may see the phrase “reasonable excuse“. The police will claim that you failed to provide a specimen without good reason (a reasonable excuse). We may claim that you did, in fact, have a good reason for not providing a blood sample. The term “reasonable excuse” is broadly defined and can relate to a physical impediment (e.g. a broken jaw) or a mental health condition. It could also relate to a fear or phobia.
Let me give you an example. Our team recently defended a young man charged with FTP. For the purposes of this example, I will call our client Mr Jay. Mr Jay was pulled over for speeding. When the officer spoke to Mr Jay, he smelt cannabis and requested a drug swab. The swab showed positive and Mr Jay was subsequently arrested. At the police station the officer requested a specimen of blood. Mr Jay refused, but did not say why. He was charged with FTP.
The prosecutor described this case as “open & shut”. He believed that my client was guilty.
We represented Mr Jay at his first court hearing and entered a not guilty plea. When the prosecutor asked me why Mr Jay was pleading not guilty, I explained that he had a ‘reasonable excuse’. The prosecutor looked at me blankly, as if I’d spoken to him in Chinese! My client dislikes needles, I explained. The matter was set down for trial in 3 months’ time.
Mr Jay had a very good explanation for why he did not mention his phobia of needles to the police officer – he didn’t consider it to be a medical reason, nor did he have any medical records to support his claim. Why would he? Medical records don’t tend to show a needle phobia. We worked around this by instructing a psychotherapist to produce an expert report for use court. The psychotherapist found that Mr Jay did have a recognised phobia of needles.
To add weight to his argument, we obtained a witness statement from Mr Jay’s mother. She claimed that her son had always disliked needles, ever since she could remember. Even now he left the room when SuperVets came on television!
Our case was presented to the court on the trial date. The prosecution had no direct evidence to disprove his phobia. We had a psychological report and detailed witness statements. The court found Mr Jay not guilty of FTP. He was also awarded costs.
There are, of course, many other ways to defence FTP allegations. Avoiding a conviction is particularly important because of the sentencing options.
The starting point for the court is a 12 month disqualification and a fine. This can increase depending upon the circumstances of the offence, including any aggravating factors (i.e. possession, a car accident, children present, previous convictions etc…).
The most severe penalty is an immediate prison sentence. The Sentencing Guidelines allow the magistrates to send a defendant to prison where they are satisfied that the defendant deliberately refused to give blood and was heavily impaired. This would result in a 12 week prison sentence.
M.A.J. Law specialise in defending motorists nationwide. Our team have over 50 years of combined experience and first-hand knowledge of most courts in England and Wales. Free advice? Please get in touch.