06 October, 2023
Some people may be physically unable to use the current evidential breath analysis machines relied upon by police to gather proof of driving under the influence of alcohol or drugs, new research from the University of Sheffield indicates.
The new study challenges the norm that anyone failing to provide a breath sample at a police station is deliberately obstructive, questioning the fairness of 'failure to provide' charges.
Under the 1988 Road Traffic Act, anyone unable to complete a breathalyser test at a police station is automatically charged with Failure to Provide, which can have severe consequences for the offender, including driving disqualifications, a maximum possible sentence of six months imprisonment and an unlimited fine.
The general assumption of the police and the courts is that those who fail to provide a breath specimen are wilfully failing to do so, but evidence for this assumption is extremely thin.
The literature search revealed only four research papers on the current evidential machines. Each has difficulties because of small samples, little detailed analysis or commentary, and the risk of bias.
The researchers noted four characteristics that may impact a person's ability to give a breath sample: stature, age, sex and whether or not they smoke.
The researchers concluded:
It is very clear from the BioBank data that shorter persons are at greater risk of being unable to provide a breath sample:
Age is an important factor:
The sex of the person emerges as a critical factor:
No previous study has investigated the effects of smoking tobacco despite its well-known deleterious effects on lung function. The present investigation confirms its relevance:
This study implies that, overall, at least 1 man in 186 and 1 woman in 61 would be physiologically incapable of providing an evidential breath sample, and these figures can be approximately halved to 1 man in 87 or 1 woman in 32 if they happen to be daily smokers. Age increases risk, with people in their 70s being six times more likely to fail than those in their 40s. Concerning stature, the risk figures rise to 1 in 38 short men and 1 in 26 short women (i.e. below the second percentile of height), with increasing age further compounding this effect.
The UK has around 4,000 annual prosecutions for Failure to Provide under the 1988 Act. If, as the results imply, a percentage of the population is physiologically incapable of operating the extant machines, then some of these annual prosecutions may have had a wrong outcome - some individuals who should have received a penalty for driving under the influence of alcohol may have been acquitted when a different specimen would have proved their guilt, whilst other individuals who were not, in fact, over the legal limit may have been wrongly convicted of Failure to Provide simply because they were unable to use the machine.
It is impossible to estimate the actual number of unsafe convictions without detailed demographic information (age, sex, height, smoking status) regarding those who were prosecuted.
Correcting this situation would not require legislation but merely alterations to existing procedures, as the 1988 Act allows for a person to give an alternative sample if "the constable who required the specimens of breath has reasonable cause to believe that the device has not produced a reliable indication" or if "it is then for any other reason not practicable to use such a device".
It would be helpful if police forces were alerted that certain people cannot use the existing evidential machines and adopt a more flexible approach in allowing an alternative sample to be taken.
Our solicitors are familiar with this and other research, so if you face investigation or prosecution for any road traffic offence, please get in touch with us as soon as possible to ensure the best possible outcome.
We ensure we keep up to date with any changes in legislation and case law so that we are always best placed to advise you properly. If you want to discuss any aspect of your case, don't hesitate to contact Craig MacKenzie, Partner and head of the High-Profile & Private Crime Division.
Our specialist Motoring Team is led by Partner Simon Gretton, a nationally renowned expert in this field.
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