Refusing to Provide a Blood or Urine Sample

Refusing to provide a blood or urine sample is an offence under section 138H of the Law Enforcement (Powers and Responsibilities) Act 2002 which carries a maximum penalty of 2 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You were required under section 138G of the Act to provide a blood or urine sample, and 
2. You refused to do so.

Section 138G of the Act provides that a person to whom sections 138D to 138G applies must provide a blood or urine sample to an authorised taker at a police station or other place where a person is detained in connection with an alleged offence.

Section 138D makes clear the offence applies to a person who has been arrested by a police officer for:

1. An offence of assault causing death under section 25A(2) of the Crimes Act 1900, which is the offence of assault causing death whilst intoxicated,
2. Any other offence that involves an assault if a police officer believes the person would be liable to an offence under section 25A(2), or
3. A traffic offence in respect of which the provisions of Schedule 3 of the Road Transport Act 2013 apply,

Schedule 3 of the Road Transport Act provides that a blood or urine sample may be taken for drug or alcohol related offences such as drink driving or drug driving where a breath analysis or ‘lick test’ were not taken within 2 hours of the alleged offence.

A blood or urine sample may only be taken within 4 hours of the alleged offence.

You are not guilty of the offence if you establish, on the balance of probabilities, that you were unable on medical grounds to provide the sample.

General legal defences to the offence include duress, necessity and self-defence.

If you are able to raise evidence of a general legal defence, the onus then shifts to the prosecution to prove beyond a reasonable doubt that the defence does not apply to the circumstances of the case.

You are entitled to an acquittal if the prosecution is unable to do this.