Police procedure drink driving related offences

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1 Police procedure drink driving related offences The procedure for drink drive related offences is very stringent. A huge variety of defences can be mounted as a result of breaches in police procedure. Whilst it is not possible to outline all of the various potential breaches in procedure here (as they are specific to each individual case), the basic outline to the police procedure is found below: Random police vehicle stops The Police can stop vehicles at random, however they cannot perform completely random preliminary breath alcohol tests. In order to perform a breath test the Police must reasonably suspect that the driver has consumed alcohol. If a vehicle fails to stop when indicated by Police, they are committing an offence. Drink driving police arrest A driver may be arrested without warrant if: The results of the preliminary breath test cause the officer to reasonably suspect that the proportion of alcohol exceeds the legal limit A person does not co-operate with a preliminary roadside alcohol breath test The Police officer reasonably suspects that the driver has alcohol in their body or is under the influence of alcohol or drugs, and has been driving, attempting to drive or is in charge of a vehicle. Whilst in most cases a person will have given a preliminary breath test at the roadside, this is not essential. An evidential specimen (at the police station or at the hospital) could still be required if for example a roadside breathalyser is not available or it is not practicable to use one. If a person is arrested they will be required to provide an evidential specimen for analysis, which can be breath, blood or urine. Breath tests The Police can stop a driver at any time and ask them to take a breath test if they think the driver has been drinking, has committed a traffic offence, or has been involved in a road traffic accident. If a driver refuses to take the test or fails to supply a sample of breath without a reasonable excuse, they can be arrested. The breath test gives immediate results, and if a driver was not over the legal limit, they must be allowed to go. If a driver fails the test they are taken to a Police station and will have 2 more breath tests.

2 Preliminary breath tests The Police can conduct a preliminary roadside breath alcohol test if the police officer reasonably suspects that a person: Is currently driving, attempting to drive or is in charge whilst under the influence of alcohol Has been driving, attempting to drive or in charge of a vehicle whilst under the influence of alcohol Has committed a traffic offence while driving a vehicle that was in motion A Police officer may reasonably suspect a person has been drink driving for a number of reasons. The most common ways in which suspicion is raised are if: The person admits they have drank alcohol The officer smells alcohol The person s speech is slurred The person has visible sign of intoxication such as their face is flushed, and bloodshot or glazed eyes The persons reaction are slow and uncoordinated They were driving erratically or unusually slow and cautious The Police were given information about a specific driver who is believed to be driving while intoxicated A person cannot be convicted on the basis of a preliminary breath test alone. If a diver provided a sample which showed that they were over the limit at the roadside, but later failed to provide an evidential specimen, then they would be charged with failure to provide a specimen for analysis rather than drink driving. Evidential breath test Once arrested a person will be required to provide 2 samples of breath for analysis. The person must be warned that failure to provide the specimen will render them liable to prosecution. The specimen with the lower reading will be used as prosecution evidence. Breath testing equipment allows a person 3 minutes to provide a sufficient sample of breath. Medical reasons If a person tells the police officers that there are medical reasons for not providing a breath specimen the Police can request an evidential blood or urine sample. If a police officer has reasonable cause to believe that there may be medical reasons for not providing a breath specimen they can request an evidential blood or urine sample instead. If there are no medical reasons are identified for failing to provide a breath specimen, and there is no reasonable excuse the person can be charged with failing to provide a specimen for analysis.

3 Results from evidential breath tests Breath test result Action taken 35 or below Person is not charged Between Person may be released with caution or without charge Between Person has the option to replace their breath specimen with an alternative specimen of blood or urine for analysis or will be charged with drink driving based on the breath sample 51 or higher Person charged accordingly Unreliable results Person should be required to provide an alternative specimen for analysis Device unavailable Person should be required to provide an alternative specimen for analysis Failing to co-operate with prelminary breath tests It is an offence to fail to co-operate with a preliminary roadside alcohol breath test. The person could receive a fine, penalty points or a driving ban as punishment. They would be arrested and required to provide an evidential specimen. Blood and urine specimens A blood or urine specimen will be required if an evidential breath specimen cannot be supplied or if there is reason to believe that the breath specimen was unreliable. The police officer can choose which specimen is required. If medical reasons have been given for refusing a breath specimen and the officer has no reason to doubt them, a blood or urine specimen must be required. A blood or urine specimen could also be supplied if the person has elected to have their specimen of breath replaced by a different sample in cases where at least one of breath results was 50 or below. The guidance for how to take either specimen must be followed entirely in order for a conviction to be secured. Evidential blood specimens Where a person agrees to provide a blood sample and for that sample to be analysed, the blood sample must then be taken by a doctor, medical practitioner or registered health care professional. One sample of blood should then be taken and split into two vials. The officer must offer the person one of the samples to be independently tested if they wish. The other sample will be sent to a police forensic laboratory to be analysed. The sample must then be analysed correctly in order for a conviction to be secured. Evidential urine specimens

4 Where a person agrees to provide a urine sample and for that sample to be analysed, unlike blood specimens, urine samples do not need to be taken by a doctor, registered health care professional or medical practitioner. The person will be required to provide two different specimens within one hour of the requirement. The officer must offer the person one of the samples to be independently tested if they wish. The sample must then be analysed correctly in order for a conviction to be secured. Failure to provide an evidential specimen Failing or refusing to provide an evidential specimen without reasonable excuse is a criminal offence. If this is the case a person can be charged with either: Failing to provide a specimen for analysis while in charge of a vehicle Failing to provide a specimen for analysis while driving or attempting to drive a vehicle Reasonable excuses for failure to provide specimen If there are genuine reasons for failing to provide a specimen, no charges for failing to provide a specimen should be brought. If there is a reasonable excuse for not providing a specimen, an alternative type of specimen will be required. Unfortunately many people are charged with failure to provide a specimen where a reasonable excuse was available. The excuse may not have been believed at the time of being asked to provide the specimen, or the reasonable excuse might be established through subsequent testing etc after the person has left the police station. A person who has been charged with failure to provide a specimen, but has a reasonable excuse, should put forward a defence and proceed to trial. Reasonable excuses can include: Mental or physical incapacity Genuine medical reasons Inability to understand the requirement (eg. Does not understand English) Reasonable excuses not included are: Refusal until a person consults with a solicitor Refusal until a person has had their phone call informing someone of their arrest Any mistaken belief of the requirement that the person did not have to provide the specimen Bail After either providing or refusing to provide an evidential specimen, a person can be detained at the police station before being bailed with or without charge. The person would normally be kept in a police cell until it was believed that the level of alcohol in their system had fallen below the legal limit. If there is insufficient evidence to charge a person they can be released on police bail pending further inquiries. Police bail without charge is normally granted to those that provide a blood or urine sample

5 upon initial arrest. The person is required to attend the police station at a later date when specimen results are available. A person is normally bailed with charge if they have provided breath, blood or urine samples that exceed the maximum legal limit. If a person is charged with drink driving related offences on their initial arrest or at a later date, they can be bailed to appear at a Magistrates court at a future date. If a person fails to surrender to police bail by not attending the station on the date specified then the police can arrest the person without warrant. If they fail to appear at a Magistrates court on a date specified after they have been granted bail, a warrant can be issued for arrest and they may face further charges. Punishments for failing to surrender to bail can include fines, community orders and imprisonment. Procedural defences and technicalities Whilst the basic outline for the procedure in drink driving related offences is outlined above, a further layer of detail in procedure may be challenged in order to secure an acquittal for a drink driving related offence. It is this further layer of detail which is often neglected by police officers and other individuals involved in the drink drive procedure. Identifying a procedural error could mean that the evidence obtained from the procedure is unlawful, or unfair and cannot be relied upon. Legal advice Any person seeking to establish whether a procedural technicality/loophole may be available in their case should speak to an expert motoring lawyer immediately. Any delay in contacting a solicitor could mean that crucial evidence such as CCTV footage is taped over or destroyed by the police in the meantime. Forster Dean Solicitors are experts in the field of drink driving, and have a particular specialism in defending drink driving related offences due to their in depth knowledge of police procedure and the drink driving laws. Head of motoring law at Forster Dean, Alison Ashworth has never lost a case involving the analysis of blood or urine. Call our dedicated helpline today on to find out whether your case is one of the many that can be successfully defended. For more information please visit our website at