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Mr H instructed Cunninghams Draycott Browne Solicitors in respect of an allegation of driving with excess alcohol.

Mr H had provided a relatively low reading in breath at the police station but was still over the prescribed limit of 35ųg.  If a breath sample is below 50ųg (but above 35ųg), the police must advise you that you are entitled to exercise your “statutory option” to have the breath sample replaced by a further, more accurate sample of either blood or urine.  If the police do not provide you with this option then they have breached the procedure and you should be afforded a full defence to the allegation.  It is your decision alone on whether to provide a further specimen, but the police’s decision on what that specimen should be – i.e. blood or urine.

In Mr H’s case, the police did follow the correct procedure at this point and he elected to have his breath specimen replaced.  The police decided that this would be a specimen of urine.

Unlike blood specimens, specimens of urine are not required to be taken by a medical practitioner.  They are usually taken by the police officer who made the initial requirement.  Section 7(5) of the Road Traffic Act 1988 states that the defendant will have to provide a specimen of urine within an hour of the requirement being made, but after the disposal of an initial specimen of urine.  The first sample is thrown away and it is the second sample that is to be tested.

In Mr H’s case, there was only a two minute gap between giving the first sample to giving the second sample.  It could therefore be argued that if the whole process took no more than two minutes then, in reality, the urine obtained was all the same specimen and therefore the analysis was inadmissible.  Furthermore, Mr H stated that he did not provide two specimens of urine, and only provided one continuous flow but in two separate ‘pots’.  The Magistrates at Llanelli Magistrates Court in Wales could not be sure beyond any reasonable doubt that the correct procedure had been followed and Mr H was therefore acquitted.