Failing to Provide a Specimen – Respiratory Issues

One of the more common offences that we encounter is that of failing to provide an evidential specimen. As part of a drink drive investigation, a specimen of breath, blood or urine will be required. For a drug driving investigation, the evidential specimen will be a blood sample.

Section 7(6) of the Road Traffic Act 1988 provides that:

Asthma is a condition in which your airways narrow and swell, and produce extra mucus. This can impact a person’s ability to breathe, and lead to coughing, wheezing and shortness of breath. The severity of asthma will differ wildly from person to person. For some, it is a minor inconvenience. For others, it is a major issue which interferes with day to day life and can be life-threatening if not treated or managed properly.

If you suffer from asthma, and were not carrying with you an inhaler, this may result in the police (potentially wrongly) dismissing this condition as a reasonable excuse.

COPD is the name for a group of conditions that impact the ability to breath such as:

• Emphysema – damage to the air sacs in the lungs
• Chronic bronchitis – long-term inflammation of the airways

These conditions are common in those who smoke, and the breathing issues tend to worsen progressively. The main symptoms of COPD include breathlessness, a persistent cough with phlegm, frequent chest infections and persistent wheezing.

This is a form of hypersensitivity pneumonitis (HP), where your lungs develop an immune response (or hyper sensitivity) to something you breathe in, which results in the lung tissue becoming inflamed.

Bird fancier’s lung is caused as a result of breathing in particles from feathers or bird droppings. Someone may also experience farmer’s lung, caused by breathing in mould that grows on hay or straw. The symptoms include coughing, shortness of breath but can even extend to fever and joint pain.

In one of our recent cases, a respiratory expert advised on ‘respiratory dyspraxia’ which is when someone experiences an uncoordinated breathing pattern (similar to someone who may have difficulty coordinating their hands or feet”.) It often presents with a rapid breathing rate which a breath test device may not be able to register correctly. You may unaware of suffering with this condition unless tested by a respiratory expert.

The approved evidential breath testing devices used in drink drive investigations are designed to measure the alcohol in ‘deep lung air’. A minimum amount of breath must be provided into the device before a measurement can be made.

Those who suffer with lung diseases such as asthma or COPD are less likely to be physically able to register a complete blow into a device, because of the reduction in the ability to produce a continuous rate of breath.

It may also be possible for someone to blow into a roadside device with absolutely no problems, yet struggle with the larger evidential breath test devices in a police station. Handheld devices and evidential devices have different requirements, with the police station machines often requiring a much longer and continuous uninterrupted flow of air.

It is for the defence to raise reasonable excuse as a defence to a sufficient standard (this means that there must usually be some form of forensic medical evidence to support the claim of reasonable excuse). It is then for the prosecution to prove beyond reasonable doubt that a defendant has no reasonable excuse.

It is also important to show a link between the respiratory issue, and the failure to provide:

In DPP v Furby [2000] RTR 181 – the defendant failed to even attempt to blow into a breath test device. It later transpired he suffered from reduced lung capacity and would not have been able to provide a breath specimen even if he had tried. The court held however; he could not rely upon his impaired lung capacity unless he made a genuine attempt to provide a specimen of breath.

Many people may suffer from respiratory issues and be unaware of any problems. So long as a genuine attempt to provide a specimen is made, it is possible to explore whether there is a respiratory issue that could amount to a reasonable excuse. It is not a pre-requisite for you to have been aware of any respiratory problems to raise this defence, however for it to have a reasonable chance of success this kind of defence must be supported by medical evidence. A hypothetical medical condition will not suffice.

If you genuinely attempted to blow into a device but failed to provide a specimen, it is likely you have a defence to the charge and we can assist with having respiratory issues investigated. At Geoffrey Miller Solicitors we have access to the country’s leading respiratory and forensic medical experts to enlist to provide evidence in support of your defence. Our agreed fee packages are fully inclusive of expert witness fees so you know the full costs from the outset of your case.