Ideally a pre-sentence report should be completed on the same day to avoid adjourning the case. The clear intention of the threshold test is to reserve prison as a punishment for the most serious offences. The Court should determine the offence category using the table below. However, this factor is less likely to be relevant where the offending is very serious. DVLA Endorsement Code: DR70 (Failing to provide a preliminary roadside specimen of breath) Magistrates Sentencing Guidelines (the above endorsements remain on a driving licence 4 years from the date of offence) A deliberate refusal to provide a specimen for analysis is a failure to provide. A custodial sentence must not be imposed unless the offence or the combination of the offence and one or more offences associated with it was so serious that neither a fine alone nor a community sentence can be justified for the offence. failing to provide a specimen cost calculator Based on our 2020 market research you can use this form to calculate the likely costs including increased car insurance cost if you were to be convicted for failing to provide a specimen. The decision as to the appropriate range of community order should be based upon the seriousness of the new offence(s) (which will take into account any previous convictions). 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. driving or attempting to drive with concentration of specified controlled drug above specified limit; failing to provide a specimen (drive/attempting to drive). When the police stop a vehicle on the road, they may choose to carry out a breath test if they suspect that the driver has consumed illegal drugs or is driving over the legal alcohol limit. Fail to provide specimen for analysis while driving or attempting to drive a vehicle DVLA Endorsement Code: DR30. Where the offender is dealt with separately for a breach of an order regard should be had to totality. There are several aspects of the legislation are open to interpretation and argument. Where an offender has turned 18 between the commission of the offence and conviction the court should take as its starting point the sentence likely to have been imposed on the date at which the offence was committed, but applying the purposes of sentencing adult offenders. Aggravation related to disability, sexual orientation or transgender identity – statutory provisions, 1. I have requested assistance via the internet to a few legal solicitors’ teams, it was on a Saturday. The court should determine the offender’s culpability and the harm caused with reference onlyto the factors below. On the basis of this I was charged with the offence of failing to provide a specimen. Section 52 of the Sentencing Code imposes a duty to give reasons for, and explain the effect of, the sentence. 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. Where there has been a significant gap between previous and current convictions or a reduction in the frequency of offending this may indicate that the offender has made attempts to desist from offending in which case the aggravating effect of the previous offending will diminish. Normally it relates to failing to provide a breath test. Unlimited fine 2. 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. Magistrates: Consult your legal adviser before deciding to sentence to custody without a pre-sentence report. Disqualification from ownership of animals, 11. iv) When the court suspends a sentence, it may impose one or more requirements for the offender to undertake in the community. 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. 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. 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 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. *The maximum sentence that applies to an offence is the maximum that applied at the date of the 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. An immature offender may find it particularly difficult to cope with the requirements of a community order without appropriate support. 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. First time offenders usually represent a lower risk of reoffending. Where the offender is a care leaver the court should enquire as to any effect a sentence may have on the offender’s ability to make use of support from the local authority. 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. Therefore a young adult’s previous convictions may not be indicative of a tendency for further offending. Introduction to out of court disposals, 5. Sentences should not necessarily escalate from one community order range to the next on each sentencing occasion. 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. 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. 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. View sentencing guidelines for this offence Fail to provide specimen while in charge of a vehicle DVLA Endorsement Code: DR60 Failure to Provide a Specimen Sentencing Guidelines in Toronto. Forfeiture and destruction of weapons orders, 18. 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. 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. Allocation, offences taken into consideration and totality, Fraud, bribery and money laundering offences, General guideline and expanded explanations in sentencing guidelines, Health and safety offences, corporate manslaughter and food safety and hygiene offences, Imposition of community and custodial sentences, Offenders with mental disorders, developmental disorders or neurological impairments, Disposals for offenders with mental disorders, developmental disorders or neurological impairments, Types of sentences for children and young people, Definitive guidelines archive of print editions, 8. 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. i) The guidance regarding pre-sentence reports applies if suspending custody. Offence committed for ‘commercial’ purposes, 11. 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. 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 length of the ban depends on the circumstances. A court wishing to impose onerous or intensive requirements should reconsider whether a community sentence might be more appropriate. Triable only summarily Maximum: Unlimited fine and/ or 6 months Offence range: Band B fine – 26 weeks’ custody. 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. Reoffending rates for first offenders are significantly lower than rates for repeat offenders. 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. 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. Previous convictions are likely to be ‘relevant’ when they share characteristics with the current offence (examples of such characteristics include, but are not limited to: dishonesty, violence, abuse of position or trust, use or possession of weapons, disobedience of court orders). 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. * 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. Community orders can fulfil all of the purposes of sentencing. An offender who is subject to licence or post sentence supervision is under a particular obligation to desist from further offending. For further information see Imposition of community and custodial sentences. 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. We fight to win impaired driving charges, over 80 charges, care and control or multiple DUI offences. If the offender received a non-custodial disposal for the previous offence, a court should not necessarily move to a custodial sentence for the fresh offence. The court will determine the offenders culpability and the harm caused as well as any aggravating and/or mitigating factors before passing sentence. 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. 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 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. By clicking on the links below you will be directed to the appropriate guideline. However, depending on circumstances, many sentences involve disqualification of driving for a set period ranging from 12 months to 60 months. 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. It is important to seek expert legal help if you are accused of failing to provide a specimen of breath. See also the Sentencing Children and Young People Guideline (paragraphs 6.1 to 6.3). Consult your legal adviser for further guidance. The court can take account of physical disability or a serious medical condition by way of mitigation as a reason for reducing the length of the sentence, either on the ground of the greater impact which imprisonment will have on the offender, or as a matter of generally expressed mercy in the individual circumstances of the case. In addition, first offenders are normally regarded as less blameworthy than offenders who have committed the same crime several times already. 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. 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. The sentencing guidelines for this offence, like most other offences, will put you into a category for determining sentence. A terminal prognosis is not in itself a reason to reduce the sentence even further. 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. Evidence that an offender has demonstrated positive good character through, for example, charitable works may reduce the sentence. Where the means of the offender are limited, priority should be given to compensation (where applicable) over payment of any other financial penalty. 3rd November 2020 |. Failure to Provide a Specimen Sentencing Guidelines in Alhambra. The court should consider the time gap since the previous conviction and the reason for it. The approach to the imposition of a custodial sentence should be as follows: 1) Has the custody threshold been passed? To go to prison, the court must be satisfied that there is evidence of serious impairment and a deliberate refusal to provide a specimen. When assessing whether a previous conviction is ‘recent’ the court should consider the time gap since the previous conviction and the reason for it. We fight to win impaired driving charges, over 80 charges, care and control or multiple DUI offenses. 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. If a custodial sentence is imposed it should be proportionate and kept to the necessary minimum. Should you require specific advice in connection with a real case or situation, please contact us so we can provide specific legal advice and assistance. 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. What sentence will I get for failing to provide a specimen? The main purpose of this particular requirement is to obtain an accurate measurement of the amount of alcohol in a person’s system. The court should determine the offender’s culpability and the harm caused with reference only to the factors below. The team of expert solicitors at Lawtons will work with you to achieve the best possible outcome in your case.The highly experienced legal representatives at Lawtons are available 24 hours a day, 7 days a week. Lack of remorse should never be treated as an aggravating factor. The imposition of a custodial sentence is both punishment and a deterrent. See also the Sentencing Children and Young People Guideline (paragraphs 1.16 and 1.17). 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. Get in touch with us today for expert legal advice and assistance by calling 0333 577 0522. The preliminary tests are: 1. a breath test whereby a specimen of breath is taken by means of a device appro… The starting point applies to all offenders irrespective of plea or previous convictions. We'll assume you're ok with this, but you can opt-out if you wish. Forfeiture or suspension of liquor licence, 24. In general the more serious the previous offending the longer it will retain relevance. 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. Approach to the assessment of fines - introduction, 6. Evidence of unacceptable standard of driving. The maximum sentence for failing to provide a specimen is 6 months in prison and a mandatory disqualification from driving. Failure to Provide a Specimen Sentencing Guidelines in Maple. Category 1 being the worst. This website uses cookies to improve your experience. 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. When considering a custodial or community sentence for a young adult the National Probation Service should address these issues in a PSR. 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. 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