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Failing to Provide a specimen of breath.  Drunk in Charge. A Case Study.

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Reece lived in a converted camper van.  He would travel around the country to wherever his work took him.  He didn’t need to book hotels as he could sleep in his own van.  He was employed to do a job in Dover and he would work Monday to Friday.  When he finished work on a Friday he would usually travel to somewhere he hadn’t visited before for the weekend.  One Friday after work he decided to drive to Canterbury.  When he arrived he parked the van safely and walked into town for  a drink.  Several hours later he returned to the van and fell asleep in the driver’s seat.  The next thing he knew the police had woken him up and were insisting he provide a sample of breath!

The Law

Reece was well aware of the law relating to drink driving.  Like most of us, he knew it was against the law to drink and drive.  He hadn’t driven the van anywhere after returning from the pub.  He simply had fallen asleep and hadn’t intended to drive the van until after he had explored Canterbury the next day.  The police insisted he provide a specimen of breath.  Reece refused to do so.  He was arrested and at the station a further requirement to provide a specimen of breath was made.  Once again he refused.  He was charged with failing to provide a specimen of breath having been suspected of being drunk in charge of a vehicle.

Drunk in Charge

The law prohibits not only driving whilst being above the drink drive limit but also being ‘in charge’ of a vehicle when above the drink drive limit.  As a matter of fact Reece had been in charge of his vehicle.  The fact that he did not know that this could be an offence did not mean that he was entitled not to provide a specimen of breath.  Therefore, Reece had committed an offence of failing to provide a specimen of breath.  The police could not prosecute him for being ‘drunk in charge’ as they did not have the evidence that he was above the drink drive limit (as he had refused to provide a specimen of breath).  They could only charge him with failing to provide a specimen.


Reece contacted me and booked a face-to-face consultation.  The only papers Reece possessed were the charge and bail sheets provided to him by the police.  However, once instructed I was able to download the full police file from an online portal (which is accessible to defence lawyers).  I emailed these papers to Reece before we met.  Then when we did meet I was able to fully explain the law to him ie that he had no defence to failing to provide a specimen.  I also explained that had he provided the specimen and been over the limit that he would have had a defence to a ‘drunk in charge’ allegation ie that he would not have driven the vehicle until he would have been below the drink drive limit.  I advised Reece about what to expect on his day in court.

At Court

We both arranged to arrive early to ensure that we were ready in good time.  Reece’s mitigation was put to the court.  In terms of the offence it was explained that Reece didn’t understand the law of drunk in charge. Consequently, he had refused to provide a specimen of breath as he didn’t know the police could require him to provide a specimen of breath even though he had no intention of driving the vehicle whilst above the limit.  Although this was not a defence in law to the
charge it did, if believed, amount to mitigation.  The court was also advised about Reece’s background and why they should deal with him leniently.


Reece already had 6 penalty points on his licence.  Normally the best result for Reece would have been a fine plus the endorsement of 10 penalty points. However, this would have meant a 6 month penalty points disqualification. The consequence of this would have meant that he would have had to sell his home (his van) and that he would have lost his job (as he had to travel from place to place at short notice).  Fortunately, the court agreed with the defence that a 30 day ban was the right sentence. This meant that Reece was able to keep his job and his home!


When Reece first rang it sounded as though it would be very difficult to avoid a long disqualification which would have meant he would have been sacked and would have had to give up his camper van.  However, once the police case papers had been obtained and Reece had provided his instructions in conference it was possible to work out a strategy to try to save his job (and, in effect, his home).  At court the plan worked and Reece was absolutely delighted.  He said,

‘I didn’t contact any other lawyers once I had spoken to you.  You gave me confidence that you would do the best possible job and I can see that you have.  Thank you.’

If you are facing the daunting prospect of having to attend court for the first time in your life do ensure that you obtain the best possible advice and representation.  At Kent Traffic Law I, Sunil Rupasinha, will always give you honest and straightforward guidance from the very first phone call.  Even if you have no real alternative but to plead ‘Guilty’ it may be, that in certain situations, the outcome may be better than you thought possible.

If you face a drink driving related charge and would like to speak to me, without obligation, please bear in mind there is no charge for an initial call.  

Request A Telephone Review (at no cost to you)

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