Drink or Drug Driving – The Second Sample

In some cases, the police need to take either a blood or urine sample from a driver suspected of driving under the influence of drink or drugs. In almost all instances, the police opt for a blood sample.

Part of the procedure is informing the suspect that they can if they wish request part of the sample for independent testing.

Despite this vital protection being available, we see a large number of people who have failed to take advantage of this procedure.

Part of the problem is the procedure adopted by the police. The police do not offer a sample to the suspect (save in one instance where the suspect is incapable of consenting), they merely state, at the commencement of the procedure, and as part of a long script, that a suspect can request a sample.

From a practical perspective, this is a deficiency in the procedure, the suspect must first pick up on the option being available, which is not always easy during what can be a confusing and pressured situation, and then they must later make a specific request.

Before the 1988 road traffic legislation, there was a specific requirement for the police to offer a specimen, so the new law was very much a significant dilution of rights.

In Campbell v Director of Public Prosecutions [2003] EWHC 559 (Admin) the court held:

“It is, therefore, no longer a statutory requirement for the officer to inform the suspect of his right to request his own specimen. [Counsel] submits that I should regard it as by now a settled principle of common law that such information should be provided to those against whom police officers are proceeding under section 7 of the 1988 Act. In my judgment, that is a hopeless proposition.”

This is not, however, the end of the matter as the court went on to state:

“There may well be circumstances, however, when, for reasons similar to those considered by the Court of Appeal in Mitten, a defendant will wish to challenge the admissibility of the analysis because he claims to have been unaware of his right to request the sample and as a result has suffered prejudice. It may be that such an application could be made under section 78 of the Police and Criminal Evidence Act 1984. I do not intend further to anticipate circumstances in which prejudice might be established.”

It may well be the case that a vulnerable or distressed suspect, or a person for whom English is not their first language, may well be able to argue that they were unaware of their rights, even though the police communicated the right.

It is the effectiveness of that communication that will be critical in such cases.

The above is just one small aspect of the law concerning the taking of samples; it is detailed and complex, so always seek advice before entering a plea at court. A failure to follow the proper procedure may provide a valid defence in this type of case.