The statutory warning


A row of old law books dealing with drink driving and other offences
Knowing the law is vital to defending yourself in court


The statutory warning sounds like something impossibly dull – any maybe it is if you’re not a lawyer – but it is something that is very important in drink driving cases.

When the police suspect somebody of drink driving they must take a specimen of breath, blood or urine from them that can be analysed to show whether the person was over or under the drink driving limit at the time they drove. Parliament has laid down strict rules about what must happen prior to the police requiring that a person suspected of drink driving provides a specimen for analysis.

Section 7 of the Road Traffic Act 1988 gives the police the power to require a person to provide a specimen and tells us that the person commits an offence if he or she fails or refuses to do without reasonable excuse. However, section 7(7) says that: “A constable must, on requiring any person to provide a specimen in pursuance of this section, warn him that a failure to provide it may render him liable to prosecution.” The words are mandatory, i.e. the police must give this warning as part of the procedure.

Let’s say the police were to fail to warn a suspected drink driver that he will be liable to prosecution if he does not provide a specimen and that person were to then refuse to provide a specimen. You may well think that the driver should not be prosecuted because the police have not given the warning that they should have done. The High Court felt that way when they heard the case of Simpson v Spalding where a police officer had been convicted of failing to provide despite not having been given the statutory warning. Lord Justice Ralph Gibson said, “If the officer fails to warn he has plainly not made the requirement in accordance with the provisions of the section”. In the case of a driver accused of failing to provide a specimen, if the requirement is not properly made then the driver cannot be guilty.

Now we’ll turn to the position of somebody who has provided the specimens despite the police officer not giving him the statutory warning. On the face of it this is a difficult question, you may think that courts have, in the past, been happy to admit evidence even where it is obtained unlawfully and so whether the warning is given or not is irrelevant where a specimen has been provided. However, in Murray (Gary) v DPP the High Court held that the results of a breath, blood or urine test obtained in accordance with section 7 will only be admissible if the procedure is fully and properly complied with and that the trial court has no power to overlook a failure to follow the procedure set out by Parliament. Therefore, if the police fail to give a suspected drink driver the statutory warning they will not be permitted to rely upon the results of that test no matter what the result of the test turns out to be.

So, if you find yourself accused of drink driving, it is very important that your solicitor goes through with you whether the police have followed the procedures set out by Parliament when advising you whether to plead guilty or not guilty.

The police will be looking out for people they suspect of drink driving over the coming weeks but, just as with any other type of crime, not everybody accused is guilty so if you find yourself accused of drink driving then make sure you call a real expert in drink driving law on 020 8242 4440.

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