Examples of Defences to a Failing to Provide Charge

  1. If you do not have sufficient lung capacity (or some other physical disability), which prevents you from providing a breath sample. Such a defence will invariably mean that medical evidence is required. You should also remember that such a defence will stand a greater chance of success, if you brought your physical problem to the attention of the police, at about the time of the requirement for a specimen.
  2. If you suffer from a medically established phobia; for instance if you have a profound fear of needles or giving blood. Or, perhaps, an irrational (for most of us) fear of contracting AIDS from the mouthpiece of a breath test machine.
  3. If you suffered from some form of panic attack at about the time the demand for the sample (of breath, blood or urine) was demanded. Here, the fact that these evidential procedures are now routinely recorded on CCTV, at the police station, is a major bonus for specialist drink and drug driving lawyers [similarly, if the officer who arrests and later processes you at the police station, was wearing body-cam, then this may also help].
  4. A faulty breath test device (even if not immediately apparent) or a blocked or otherwise defective mouthpiece. In a failing to provide an evidential breath test case, the police are advised to retain the mouthpiece. However, this does not always happen, and may therefore lead your lawyer to advance an “abuse of process” argument. If that should succeed then that may be the end of the case.
  5. If you did not understand the procedure, perhaps because your grasp of the English language was/is poor and the police had not taken steps to obtain the services of an interpreter to help you. Or, unbeknown to the police, you were suffering from the effects of a head injury and undiagnosed concussion, at the time of the procedure at the police station.
  6. If you had suffered other physical injury (fracture, severe bruising, etc.,), to your jaw or mouth, making it impossible for you to make a proper seal around the mouthpiece of the breath testing device.