Criminal justice – where does the Council fit? When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when considering the significance of this factor. Custody should not be imposed where a community order could provide sufficient restriction on an offender’s liberty (by way of punishment) while addressing the rehabilitation of the offender to prevent future crime. This is a serious offence and the court have to disqualify you for a minimum of 12 months if you are found guilty. Failure to Provide a Specimen for analysis: Many people do not realise (until it’s too late) that it is a serious offence to fail to provide a specimen when required to do so by a police officer, regardless of whether or not you would have been over the drink drive limit.It would be no defence to simply state that you only had one pint, or that you had not consumed any alcohol at all. In addition when sentencing an offender who is pregnant relevant considerations may include: The court should ensure that it has all relevant information about dependent children before deciding on sentence. Environment plays a role in neurological development and factors such as adverse childhood experiences including deprivation and/or abuse may affect development. Evidence of unacceptable standard of driving. The extent to which the offender has complied with the conditions of an order (including the time that has elapsed since its commencement) will be a relevant consideration. (Young adult care leavers are entitled to time limited support. Section 6 RTA 1988 provides a power for a constable to administer preliminary tests. However, such a condition, even when it is difficult to treat in prison, will not automatically entitle the offender to a lesser sentence than would otherwise be appropriate. Your obligation is to provide a specimen that can be used for analysis. The sentence at court depends on the facts of your case. Disqualification of company directors, 16. The case of Dean Saunders illustrates the dangers in assuming that you will not go to prison for an offence of failing to provide a breath specimen. the length of imprisonment which represents the shortest term commensurate with the seriousness of the offence; Previous convictions are considered at step two in the Council’s offence-specific guidelines. The following guidance should be considered when seeking to determine the degree to which previous convictions should aggravate sentence: Section 65 of the Sentencing Code states that: (1) This section applies where a court is considering the seriousness of an offence (“the current offence”) committed by an offender who has one or more relevant previous convictions. The court will determine the offenders culpability and the harm caused as well as any aggravating and/or mitigating factors before passing sentence. Community orders can fulfil all of the purposes of sentencing. the effect of the sentence on the offender. Ideally a pre-sentence report should be completed on the same day to avoid adjourning the case. The Court should determine the offence category using the table below.The court should determine the offender’s culpability and the harm caused with reference only to the factors below. Destruction orders and contingent destruction orders for dogs, 9. The penalty imposed upon conviction of failing to provide a specimen for analysis while driving or attempting to drive will depend upon the circumstances surrounding the offence. Forfeiture or suspension of liquor licence, 24. Racial or religious aggravation – statutory provisions, 2. If you have been charged with this offence and want advice or representation call us on 01623 397200 for a free and honest assessment of your case. The time for which a sentence is suspended should reflect the length of the sentence; up to 12 months might normally be appropriate for a suspended sentence of up to 6 months. Where no offence specific guideline is available to determine seriousness, the harm caused by the offence, the culpability of the offender and any previous convictions will be relevant to the assessment. Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence. This is wrong and can amount to a defence. If, for example, the specimen of urine supplied is so minute it cannot be analysed, the offence is committed, regardless of any intention on your part. Suggested starting points for physical and mental injuries, 1. Forfeiture and destruction of goods bearing unauthorised trade mark, 17. However, depending on circumstances, many sentences involve disqualification of driving for a set period ranging from 12 months to 60 months. Note: when considering the guidance regarding the length of disqualification in the case of a second offence, the period to be imposed in any individual case will depend on an assessment of all the relevant circumstances, including the length of time since the earlier ban was imposed and the gravity of the current offence but disqualification must be for at least three years. View sentencing guidelines for this offence Fail to provide specimen while in charge of a vehicle DVLA Endorsement Code: DR60 If a custodial sentence is imposed it should be proportionate and kept to the necessary minimum. The police realise that drugs cannot be measured accurately in breath or by taking urine, and will often place pressure on suspects to give blood samples. If requested by the police, the specimen of breath is required immediately in order to determine whether a motorist is intoxicated. The fine should meet, in a fair and proportionate way, the objectives of punishment, deterrence and the removal of gain derived through the commission of the offence. When Simon first contacted us, he made clear from the beginning that although he had been charged with Failing to Provide a Specimen of Breath for Analysis, and this charge had resulted in him receiving a summons to court, he had actually tried his best to comply with the request of the police. We’ll aim to get back to you within 30 mins between 9am - 5pm. Failing to provide a specimen at the police station means refusing to take part in such a test, and ordinarily gives the police cause to suspect that a driver is over the legal alcohol limit or has consumed illegal drugs. Failure to Provide Specimens for Analysis under Section 7. Fail to provide specimen for analysis (drive/attem... must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender’s case, and. This factor is particularly relevant where an offender is on the cusp of custody or where the suitability of a community order is being considered. (b) state in open court that the offence is so aggravated. Where an offence does not fall squarely into a category, individual factors may require a degree of weighting before making an overall assessment and determining the appropriate offence category. Leaving care services may change at the age of 21 and cease at the age of 25, unless the young adult is in education at that point). Note: This guide is intended to give general information only and not intended to be used as the basis upon which advice is given nor should it be relied upon as giving advice specific to a case or individual. driving or attempting to drive with concentration of specified controlled drug above specified limit; failing to provide a specimen (drive/attempting to drive). However, this factor is less likely to be relevant where the offending is very serious. The requirements are identical to those available for community orders, see the guideline on Imposition of Community and Custodial Sentences. Where possible, if a financial penalty is imposed, it should remove any economic benefit the offender has derived through the commission of the offence including: any gain made as a direct result of the offence. Where custody is unavoidable consideration of the impact on dependants may be relevant to the length of the sentence imposed and whether the sentence can be suspended. When assessing whether a previous conviction is ‘recent’ the court should consider the time gap since the previous conviction and the reason for it. Sections 6D RTA 1988 and 6E RTA 1988 make provision about powers of arrest and powers of entry respectively in connection with the administration of preliminary tests. Disqualification from ownership of animals, 11. What is the that can happen at court for failing to provide a specimen? (3) Where the court treats a relevant previous conviction as an aggravating factor under subsection (2) it must state in open court that the offence is so aggravated. In general, only one requirement will be appropriate and the length may be curtailed if additional requirements are necessary, More intensive sentences which combine two or more requirements may be appropriate. If sentencing an offender for more than one offence, or where the offender is already serving a sentence, consider whether the total sentence is just and proportionate to the overall offending behaviour in accordance with the Totality guideline. In considering this the court must NOT consider any licence or post sentence supervision requirements which may subsequently be imposed upon the offender’s release. Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm. Remember this is not drink driving, even if you weren’t driving or weren’t over the limit the court will have to disqualify you , although you may be able to argue special reasons.. the custody threshold has been passed; and, if so. An offender who is subject to licence or post sentence supervision is under a particular obligation to desist from further offending. Where an offender has used their good character or status to facilitate or conceal the offending it could be treated as an aggravating factor. The court should consider the time gap since the previous conviction and the reason for it. Forfeiture and destruction of weapons orders, 18. I have requested assistance via the internet to a few legal solicitors’ teams, it was on a Saturday. Prevalence and community impact statements, General guideline: overarching principles, Reduction in sentence for a guilty plea - first hearing on or after 1 June 2017, Sentencing offenders with mental disorders, developmental disorders, or neurological impairments, Overarching Principles – Sentencing Children and Young People, Imposition of Community and Custodial Sentences definitive guideline, Imposition of Community and Custodial Sentences, Imposition of community and custodial sentences guideline, High level community order – 26 weeks’ custody, 29 – 36 months (Extend if imposing immediate custody), 36 – 60 months (Extend if imposing immediate custody, Low level community order – High level community order, Offences only just cross community order threshold, where the seriousness of the offence or the nature of the offender’s record means that a discharge or fine is inappropriate, Offences that obviously fall within the community order band, Offences only just fall below the custody threshold or the custody threshold is crossed but a community order is more appropriate in the circumstances. However, the court must make clear to the offender that all sentencing options remain open including, in appropriate cases, committal for sentence to the Crown Court. Therefore a young adult’s previous convictions may not be indicative of a tendency for further offending. No. A court wishing to impose onerous or intensive requirements should reconsider whether a community sentence might be more appropriate. If there is a delay in sentencing after conviction, consider interim disqualification. These include whether the failure was a deliberate refusal, the level of driver impairment at the time of the failure and any previous offences and disqualifications.The maximum possible sentence for failing to provide a specimen of breath is six months’ imprisonment and an unlimited fine. The case was in a way specific unusual sensitive and difficult. Sentencers must consider all available disposals at the time of sentence; even where the threshold for a community sentence has been passed, a fine or discharge may be an appropriate penalty. Not guilty following historic allegation of rape and sexual assault, Health & Safety case – Thousands of pounds in fines saved, Speak to someone who can help within 30 minutes*. In accordance with section 120 of the Coroners and Justice Act 2009, the Sentencing Council issues this definitive guideline. By clicking on the links below you will be directed to the appropriate guideline. Do not retain this copy. Failing to provide a drink driving specimen is one of the most common enquiries we get. In particular, they can have the effect of restricting the offender’s liberty while providing punishment in the community, rehabilitation for the offender, and/or ensuring that the offender engages in reparative activities. Evidence that an offender has demonstrated positive good character through, for example, charitable works may reduce the sentence. The emotional and developmental age of an offender is of at least equal importance to their chronological age (if not greater). Home > Testimonials > Failing To Provide a Specimen > Mr S F Failing to Provide a Specimen Testimonial Acquitted “I cannot find the words to truly express my gratitude to this Law Firm, if you have any doubt remove it from your mind and instruct this company as soon as possible. These reasonable grounds include: No. Where the current offence is significantly less serious than the previous conviction (suggesting a decline in the gravity of offending), the previous conviction may carry less weight. 3) What is the shortest term commensurate with the seriousness of the offence? Disqualification from driving Where the police are investigating a case involving driving a vehicle the minimum driving disqualification is 12 months. Many young people who offend either stop committing crime, or begin a process of stopping, in their late teens and early twenties. The court have no discretion as to whether to disqualify you if you are guilty of failing to provide a specimen. You do not have a right to refuse to provide a specimen of breath when requested by the police. Section 59(1) of the Sentencing Code provides that: unless the court is satisfied that it would be contrary to the interests of justice to do so.”. Where it is not possible to calculate or estimate the economic benefit, the court may wish to draw on information from the enforcing authorities about the general costs of operating within the law. While the police can stop any vehicle on the road, they must have reasonable grounds for conducting a roadside test such as a breath test. Extension period of disqualification from driving where a custodial sentence is also imposed, 2. On the basis of this I was charged with the offence of failing to provide a specimen. This guideline applies only to offenders aged 18 and older. Reduced period of disqualification for completion of rehabilitation course, 7. 2) Is it unavoidable that a sentence of imprisonment be imposed? If necessary, the court may compel the disclosure of an individual offender’s financial circumstances pursuant to, The seriousness of the offence should be the. The aggravating effect of relevant previous convictions reduces with the passage of time; Where the previous offence is particularly old it will normally have little relevance for the current sentencing exercise. A terminal prognosis is not in itself a reason to reduce the sentence even further. The requirement to provide a specimen of breath, blood or urine at a police office usually comes about because a person has failed the preliminary roadside test. Only the online version of a guideline is guaranteed to be up to date. The Court should determine the offence category using the table below. Aggravation related to disability, sexual orientation or transgender identity – statutory provisions, 1. Section 52 of the Sentencing Code imposes a duty to give reasons for, and explain the effect of, the sentence. * If order does not contain a punitive requirement, suggested fine levels are indicated below: Sentencing flowcharts are available at Imposition of Community and Custodial Sentences definitive guideline. Get in touch with us today for expert legal advice and assistance by calling 0333 577 0522. Where any such risk of harm is the subject of separate charges, this should be taken into account when assessing totality. When considering a community or custodial sentence for an offender who has, or may have, caring responsibilities the court should ask the National Probation Service to address these issues in a PSR. It provides guidance which sentencers are encouraged to take into account wherever applicable, to ensure that there is fairness for all involved in court proceedings. Immaturity can also result from atypical brain development. The sentencing guidelines for this offence, like most other offences, will put you into a category for determining sentence. If a person refuses to provide a specimen or refuses to co-operate with a roadside breath test they will have subsequently 'failed' to do so, they will be guilty of an offence and they will be charged accordingly. The main purpose of this particular requirement is to obtain an accurate measurement of the amount of alcohol in a person’s system. Numerous and frequent previous convictions might indicate an underlying problem (for example, an addiction) that could be addressed more effectively in the community and will not necessarily indicate that a custodial sentence is necessary. Obtaining financial information: It is for the offender to disclose to the court such data relevant to their financial position as will enable it to assess what they can reasonably afford to pay. An immature offender may find it particularly difficult to cope with the requirements of a community order without appropriate support. Passing the custody threshold does not mean that a custodial sentence should be deemed inevitable. Section 6A RTA 1988 provides for a preliminary breath test, 6B RTA 1988 for a preliminary impairment test and 6C RTA 1988 for a preliminary drug test. Allegations of failing to provide a specimen are often complex as there is no predefined criteria as to what can amount to a “reasonable excuse” for that failure. See also the Sentencing Children and Young People Guideline (paragraphs 1.16 and 1.17). Fail to provide specimen for analysis (drive/attempt to drive) (2017), Road Traffic Act 1988, s.7(6) 139 Fail to provide specimen for analysis (in charge) (2017), Road Traffic Act 1988, s.7(6) 143 Fail to stop when required by police constable 165 Fail to stop/report road … The individual offence guidelines indicate whether disqualification is mandatory for the offence and the applicable minimum period. Section 64 of the Sentencing Code states: In considering the seriousness of any offence committed while the offender was on bail, the court must -, (a) treat the fact that it was committed in those circumstances as an aggravating factor and. Disqualification until a test is passed, 6. The court should take into account section 74 of the Sentencing Code (reduction in sentence for assistance to prosecution) and any other rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered) to the prosecutor or investigator. What if I am willing to provide a specimen, but fail to do so despite my best efforts? In support of defending a charge of failing to provide a specimen of breath the court will want to see any associated GP notes along with any expert witness who will no doubt be instructed in such a case. While the police commonly request a specimen of breath when they suspect a motorist of drink driving, failure to provide a specimen of breath is a separate offence. However, any of these would need to be backed up by substantial evidence: It should be noted that the police must, when requesting a specimen of breath, warn you that failing to provide a specimen might lead to prosecution. The sentencing guidelines set out the basis of sentencing. Lawtons do not accept liability for anyone using this guide. There are a number of reasons why a specimen of breath may not have been provided upon request. Having determined the category at step one, the court should use the appropriate starting point to reach a sentence within the category range in the table below. The court should determine the offender’s culpability and the harm caused with reference onlyto the factors below. There is no general definition of where the custody threshold lies. Where the offender is dealt with separately for a breach of an order regard should be had to totality. However, depending on circumstances, many sentences involve disqualification of driving for a set period ranging from 12 months to 60 months. When considering a custodial or community sentence for a young adult the National Probation Service should address these issues in a PSR. It applies to all offenders aged 18 and older, who are sentenced on or after the effective date of this guideline, regardless of the date of the offence.*. It may be helpful to indicate to the National Probation Service the court’s preliminary opinion as to which of the three sentencing ranges is relevant and the purpose(s) of sentencing that the package of requirements is expected to fulfil. Offences for which penalty notices are available, 5. Lack of remorse should never be treated as an aggravating factor. There are several factors which will impact the sentence imposed for failing to provide a specimen of breath. For further information see Imposition of community and custodial sentences. Refusing to provide a specimen of breath without reasonable grounds constitutes a criminal offence. To go to prison, the court must be satisfied that there is evidence of serious impairment and a deliberate refusal to provide a specimen. A breathalyser will give an indication of this. The starting point applies to all offenders irrespective of plea or previous convictions. Please remember that in a drink driving case the court could decide that you deliberately refused even where you made attempts to blow. the offender’s responsibility for the offence and. The primary significance of previous convictions (including convictions in other jurisdictions) is the extent to which they indicate trends in offending behaviour and possibly the offender’s response to earlier sentences. When an immediate custodial sentence is necessary, the court must consider whether proper arrangements have been made for the care of any dependent children and if necessary consider adjourning sentence for this to be done. Category 1 being the worst. Where an offence does not fall squarely into a category, individual factors may require a degree of weighting before making an overall assessment and determining the appropriate offence category. Disqualification from driving – general power, 10. 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