failing to provide a specimen sentencing guidelines

For more serious offences where a substantial period of custody is appropriate, this factor will carry less weight. Either or both of these considerations may justify a reduction in the sentence. See also the Imposition of community and custodial sentences guideline. 13th July 2020 |, 8th July 2020 |, 7th July 2020 |, Failing to provide a specimen of breath: Sentencing guidelines, The offence of failing to provide a specimen of breath is a serious offence and can have significant consequences in the event of a guilty verdict. Where an offender has used their good character or status to facilitate or conceal the offending it could be treated as an aggravating factor. Fail to provide specimen for analysis while driving or attempting to drive a vehicle DVLA Endorsement Code: DR30. 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. Fail to provide specimen for analysis while in charge of a vehicle DVLA Endorsement Code: DR60. For category 1 to apply it means that there must be higher culpability and greater harm. Providing a specimen at a later time would fail to achieve this accurately. 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. Criminal justice – where does the Council fit? It is not intended for anyone who genuinely cannot provide a breath, blood or urine specimen to be prosecuted for failing to do so. In addition, first offenders are normally regarded as less blameworthy than offenders who have committed the same crime several times already. Care should be taken to avoid double counting matters taken into account when considering previous convictions. 2) Is it unavoidable that a sentence of imprisonment be imposed? 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. The starting point applies to all offenders irrespective of plea or previous convictions. For further information see Imposition of community and custodial sentences. 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. Where information is available on the context of previous offending this may assist the court in assessing the relevance of that prior offending to the current offence, Commission of an offence while subject to a. Evidence that an offender has demonstrated positive good character through, for example, charitable works may reduce the sentence. Disqualification from driving – general power, 10. On the basis of this I was charged with the offence of failing to provide a specimen. Failing to Provide a Specimen: Sentencing Guidelines The Magistrates Court sentencing guidelines can now be found online. Offences for which penalty notices are available, 5. 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. In theory it is possible for a completely sober driver to be prosecuted for failure to provide a specimen of breath without alcohol ever having been involved. Failing To Provide A Blood Specimen Failing to provide a specimen of blood during a drug driving investigation is a serious offence. General principles to be considered in the sentencing of children and young people are in the Sentencing Council definitive guideline, Overarching Principles – Sentencing Children and Young People. Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm. Automatic orders on conviction for sexual offences, Additional note: Availability of ancillary orders, 1. 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.*. There is no general definition of where the custody threshold lies. These reasonable grounds include: No. When considering the totality of previous offending a court should take a rounded view of the previous crimes and not simply aggregate the individual offences. Failing to Provide a Specimen (where the police allege that you have been driving or attempting to drive) * 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. 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. A prison sentence of up to 26 weeks or a community order can also be imposed upon conviction of failing to provide a specimen while driving or attempting to drive. 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. Triable only summarily Maximum: Unlimited fine and/ or 6 months Offence range: Band B fine – 26 weeks’ custody. The court must impose a sentence that properly meets the aims of sentencing even if it will carry the clear prospect that the offender will die in custody. The case was in a way specific unusual sensitive and difficult. When assessing whether a previous conviction is ‘recent’ the court should consider the time gap since the previous conviction and the reason for it. (b) the time that has elapsed since the conviction. 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. For these reasons first offenders receive a mitigated sentence. View sentencing guidelines for this offence Fail to provide specimen while in charge of a vehicle DVLA Endorsement Code: DR60 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. The court will determine the offenders culpability and the harm caused as well as any aggravating and/or mitigating factors before passing sentence. Guideline users should be aware that the Equal Treatment Bench Book covers important aspects of fair treatment and disparity of outcomes for different groups in the criminal justice system. evaluate the consequences of their actions, any effect of the sentence on the health of the offender and, any effect of the sentence on the unborn child. Immediately on my return home I looked at the reviews for legal expertise in this field. Failure to Provide Specimens for Analysis under Section 7. Do not retain this copy. 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*. Failing to provide a drink driving specimen is one of the most common enquiries we get. 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. At Drink Drive Solicitors we represent people all around the country every day charged with failing to provide a specimen. 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. Failing to provide a specimen is often considered more serious than the actual offence the police were investigating. Speeding offences Toggle accordion. In many cases, a pre-sentence report will be pivotal in helping the court decide whether to impose a community order and, if so, whether particular requirements or combinations of requirements are suitable for an individual offender. The Magistrates’ Court Sentencing Guidelinesdeal with failing to pro… The maximum sentence for failing to provide a specimen is: 1. (b) state in open court that the offence is so aggravated. must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function, Must endorse and disqualify for at least 12 months, Must disqualify for at least 2 years if offender has had two or more disqualifications for periods of 56 days or more in preceding 3 years – refer to the, Must disqualify for at least 3 years if offender has been convicted of a relevant offence in preceding 10 years –consult your legal adviser for further guidance, The court should determine the appropriate level of fine in accordance with this guideline and. 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. Reduced period of disqualification for completion of rehabilitation course, 7. Disqualification from ownership of animals, 11. 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. Failing to Give Information Re: Identity of Driver (PDF 130 KB) Failing to Produce Licence / Insurance / Test Certificate (PDF 14 KB) Failing to Provide a Specimen of Breath / Blood (PDF 87 KB) Failing to Stop for a Constable (PDF 12 KB) Failing to Stop / Remain / Report Injury Accident or … See also the Sentencing Children and Young People Guideline (paragraphs 1.16 and 1.17). The court will need to be satisfied that the offender is genuinely remorseful for the offending behaviour in order to reduce the sentence (separate from any guilty plea reduction). The court should determine the offender’s culpability and the harm caused with reference only to the factors below. 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 following factors should be weighed in considering whether it is possible to suspend the sentence: Factors indicating that it would not be appropriate to suspend a custodial sentence, Factors indicating that it may be appropriate to suspend a custodial sentence, Offender presents a risk/danger to the public, Appropriate punishment can only be achieved by immediate custody, History of poor compliance with court orders, Immediate custody will result in significant harmful impact upon others. For offenders on the cusp of custody, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing. Racial or religious aggravation – statutory provisions, 2. 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. (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. However, depending on circumstances, many sentences involve disqualification of driving for a set period ranging from 12 months to 60 months. Failure to Provide a Specimen Sentencing Guidelines in Maple. Useful information can be found in the Equal Treatment Bench Book (see in particular Chapter 6 paragraphs 94-100). 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. Where any such risk of harm is the subject of separate charges, this should be taken into account when assessing totality. Sentencing guidelines - failing to provide a specimen For first time offences the Magistrate's Court will refer to the following guidelines: Penalties for those who have a previous drink related driving conviction within the previous 10 years start at 36 months (3 years) … The preliminary tests are: 1. a breath test whereby a specimen of breath is taken by means of a device appro… What if I am willing to provide a specimen, but fail to do so despite my best efforts? 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. If requested by the police, the specimen of breath is required immediately in order to determine whether a motorist is intoxicated. In considering economic benefit, the court should avoid double recovery. v) A custodial sentence that is suspended should be for the same term that would have applied if the sentence was to be served immediately. 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. the custody threshold has been passed; and, if so. Magistrates: Consult your legal adviser before deciding to sentence to custody without a pre-sentence report. 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. The court must consider whether to give credit for time spent on bail in accordance with section 240A of the Criminal Justice Act 2003 and section 325 of the Sentencing Code. 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. Step 1 – Determining the offence category, Failure to comply with current court orders, Offence committed on licence or post sentence supervision, High level of traffic or pedestrians in the vicinity, Serious medical condition requiring urgent, intensive or long-term treatment, Age and/or lack of maturity where it affects the responsibility of the offender, Sole or primary carer for dependent relatives. Destruction orders and contingent destruction orders for dogs, 9. Lack of remorse should never be treated as an aggravating factor. 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. There are several aspects of the legislation are open to interpretation and argument. If a custodial sentence is imposed it should be proportionate and kept to the necessary minimum. Home > Knowledge Centre > Failing to provide a specimen of breath: Sentencing guidelines. 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. Failure to Provide a Specimen Sentencing Guidelines in Alhambra. We fight to win impaired driving charges, over 80 charges, care and control or multiple DUI offences. An offender who is subject to licence or post sentence supervision is under a particular obligation to desist from further offending. iii) Where the court imposes two or more sentences to be served consecutively, the court may suspend the sentence where the aggregate of the terms is between 14 days and 2 years (subject to magistrates’ courts sentencing powers). I have requested assistance via the internet to a few legal solicitors’ teams, it was on a Saturday. Many young people who offend either stop committing crime, or begin a process of stopping, in their late teens and early twenties. This field is for validation purposes and should be left unchanged. In all cases, the court should consider whether to make compensation and/or other ancillary orders including offering a drink/drive rehabilitation course. But, an offender’s knowledge that he will likely face the prospect of death in prison, subject only to the ERCG provisions, is a factor that can be considered by the sentencing judge when determining the sentence that it would be just to impose. Refusing to provide a specimen of breath without reasonable grounds constitutes a criminal offence. the offender’s responsibility for the offence and. This factor may apply whether or not the offender has previous convictions. In cases involving significant persistent offending, the community and custody thresholds may be crossed even though the current offence normally warrants a lesser sentence. At first it was alleged that I failed to provide a specimen while in charge, then at the Police Station suspected of having driven a vehicle and having been required to provide a specimen. ii) If the court imposes a term of imprisonment of between 14 days and 2 years (subject to magistrates’ courts sentencing powers), it may suspend the sentence for between 6 months and 2 years (the ‘operational period’). It is important to know the sentencing guidelines around failing to provide a specimen of breath in order to understand the impact that a conviction can have. If there is a delay in sentencing after conviction, consider interim disqualification. 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. 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. 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. (Young adult care leavers are entitled to time limited support. 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). Where an offender is being sentenced for a non-imprisonable offence, there is no power to make a community order. In particular young adults (typically aged 18-25) are still developing neurologically and consequently may be less able to: Young adults are likely to be susceptible to peer pressure and are more likely to take risks or behave impulsively when in company with their peers. 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. 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. The clear intention of the threshold test is to reserve prison as a punishment for the most serious offences. Imposition of fines with custodial sentences, 2. The starting point applies to all offenders irrespective of plea or previous convictions. Normally it relates to failing to provide a breath test. 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. 6 months in prison 3. Immaturity can also result from atypical brain development. There are several factors which will impact the sentence imposed for failing to provide a specimen of breath. This is a serious offence and the court have to disqualify you for a minimum of 12 months if you are found guilty. 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. If for example, there are genuine medical reasons for not providing a specific type of specimen … No. The imposition of a custodial sentence is both punishment and a deterrent. A terminal prognosis is not in itself a reason to reduce the sentence even further. iv) When the court suspends a sentence, it may impose one or more requirements for the offender to undertake in the community. Offence committed for ‘commercial’ purposes, 11. You do not have a right to refuse to provide a specimen of breath when requested by the police. In practice the maximum sentence is rarely imposed the magistrates have guidelines that they use to decide the sentence in each case. Disqualification from driving Where the police are investigating a case involving driving a vehicle the minimum driving disqualification is 12 months. The court should consider the time gap since the previous conviction and the reason for it. Category 1 being the worst. The offence of failing to provide a specimen of breath is a serious offence and can have significant consequences in the event of a guilty verdict. This guideline applies only to offenders aged 18 and older. Where the offender is dealt with separately for a breach of an order regard should be had to totality. 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. There will always be a need to balance issues personal to an offender against the gravity of the offending (including the harm done to victims), and the public interest in imposing appropriate punishment for serious offending. In general the more serious the previous offending the longer it will retain relevance. Ideally a pre-sentence report should be completed on the same day to avoid adjourning the case. 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. What sentence will I get for failing to provide a specimen? 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. 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. 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. To ensure that the overall terms of the suspended sentence are commensurate with offence seriousness, care must be taken to ensure requirements imposed are not excessive. In particular, a Band D fine may be an appropriate alternative to a community order. Where the means of the offender are limited, priority should be given to compensation (where applicable) over payment of any other financial penalty. Whenever the court reaches the provisional view that a community order may be appropriate, it should request a pre-sentence report (whether written or verbal) unless the court is of the opinion that a report is unnecessary in all the circumstances of the case. It is important to seek expert legal help if you are accused of failing to provide a specimen of breath. An immature offender may find it particularly difficult to cope with custody and therefore may be more susceptible to self-harm in custody. The individual offence guidelines indicate whether disqualification is mandatory for the offence and the applicable minimum period. The Court should determine the offence category using the table below. Disqualification of company directors, 16. Reoffending rates for first offenders are significantly lower than rates for repeat offenders. 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. 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. Section 6 RTA 1988 provides a power for a constable to administer preliminary tests. There is a greater capacity for change in immature offenders and they may be receptive to opportunities to address their offending behaviour and change their conduct. Environment plays a role in neurological development and factors such as adverse childhood experiences including deprivation and/or abuse may affect development. I was impressed by both the results Geoffrey Miller obtained, but also the candid nature of how they explained their achievements. The length of the ban depends on the circumstances. Where there are previous offences but these are old and /or are for offending of a different nature, the sentence will normally be reduced to reflect that the new offence is not part of a pattern of offending and there is therefore a lower likelihood of reoffending. The emotional and developmental age of an offender is of at least equal importance to their chronological age (if not greater). 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. Disqualification until a test is passed, 6. If there is a delay in sentencing after conviction, consider interim disqualification. Elapsed since the previous conviction and the harm caused as well as any and/or. 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