Fail to Provide a Suitable Breath or Blood Sample
This offence occurs when an individual refuses or fails to provide a breath or blood sample after a valid demand is made, without a reasonable excuse. Even if the individual is not impaired, failing to comply can lead to a criminal charge. Defence strategies may challenge the validity of the demand, the circumstances of the refusal or failure, or whether the failure was final and unequivocal.
When a valid demand has been made for a breath or blood sample, an individual must provide a sample unless that individual has a reasonable excuse. An individual might not be impaired or over 80, yet if they fail to provide a breath sample, they may still be charged with a criminal offence. Failing to provide a breath sample without a reasonable excuse can limit defences that would otherwise be available.
Furthermore, failing to provide a breath sample means there is no evidence of how much alcohol was in a person’s system from that particular breath test. If a person provided a sample below 80, they would not be charged with over 80 operation or care and control based on that result. Providing a breath sample could dictate whether charges would be laid at all. However, even if a person were to blow 0, the fact that they failed to provide a breath sample when legally required, without a reasonable excuse, could form the basis of a charge for failing or refusing to provide a sample.
The consequences of failing to provide a breath or blood sample can be serious. Failing to provide a breath sample can apply both to an approved screening device at the side of the road and to an approved instrument operated by a qualified breath technician at a police station. It is important to note that a “failure” must be final and unequivocal. A police officer must be able to articulate how the failure was perceived and how it was attributable to the individual’s actions. The police officer must also be able to state, based on their involvement and observations, how the “failure” was explicit and constituted an act of finality on the part of that individual.
The focal point with this type of offence is analysed by looking at two aspects. Initially, an evaluation is conducted as to whether the demand was made and whether that demand itself was valid. Secondly, an evaluation is conducted as to whether the “failure” could be construed as final and unequivocal. A further point of analysis would be with respect to the actions of the police officers and whether there was a reasonable opportunity to provide a sample.
An analysis is conducted by Hundal Law Firm with respect to both of these areas. If there is a reasonable excuse why an individual cannot provide a suitable sample, then that individual should not be convicted of this offence.