Where 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 they opt for a blood sample. This process requires the suspect to be informed that they can request part of the sample taken, to be available to separately and independently tested if the suspect wishes. However, very few people take advantage of this.
No doubt, a lot of this has to do with the fact that the option is not really understood. Particularly when the “offer” is often made as part of a long script of issues and it may not really be picked up by the suspect in the police station as being important.
From a practical perspective, this doesn’t seem fair – in terms of the suspect having to pick out this important right from a slew of information at a time that can obviously 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 1988 change in law has had a negative effect on suspects rights.
Whilst the Courts have broadly upheld the change in the law, the Court of Appeal has indicated that there may well be circumstances when it might be possible to challenge the admissibility into evidence of the police’s analysis of the second sample on the basis that the suspect had been unaware of his right to request the sample and as a result has suffered prejudice. So, for example, it may be the case that a vulnerable or distressed suspect, or a person for whom English is not their first language, may be better 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.
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