Derbyshire Constabulary GUIDANCE ON DRINK/DRUGS DRIVING POLICY REFERENCE 05/041. This guidance is suitable for Public Disclosure

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1 Derbyshire Constabulary GUIDANCE ON DRINK/DRUGS DRIVING POLICY REFERENCE 05/041 This guidance is suitable for Public Disclosure Owner of Doc: Date Approved: Head of Department, Operational Support Former Standing Order Review Date: March

2 INDEX Heading Page No 1. Guidance Identification Page Legislative Compliance Introduction Procedures Monitoring and Review Appeals

3 1. Guidance Identification Page Guidance title: Guidance on Drink/Drugs Driving Registry Reference number: 05/041 Guidance implementation date: Former Standing Order Guidance review date: March 2018 Department / Division responsible: Guidance owner: Operational Support Head of Department Last reviewed by: Insp. Darren Date last reviewed: March 2016 Roberts Impacts on other policies / guidance / documents (list): None Security Classification: Disclosable under FOI Act: YES Policy to be published on Intranet YES Policy to be published on Force Website YES 3

4 2. Legislative Compliance This document has been drafted to comply with the principles of the Human Rights Act. Proportionality has been identified as the key to Human Rights compliance, this means striking a fair balance between the rights of the individual and those of the rest of the community. There must be a reasonable relationship between the aim to be achieved and the means used. Equality and Diversity issues have also been considered to ensure compliance with the Equality Act 2010 and meet our legal obligation in relation to the equality duty. In addition, Data Protection, Freedom of Information and Health and Safety Issues have been considered. Adherence to this policy or procedure will therefore ensure compliance with all relevant legislation and internal policies. 3. Introduction Driving whilst under the influence of drink or drugs poses an obvious and serious risk to other road users. It is important that officers of Derbyshire Constabulary use powers provided by legislation to target those who continue to drive whilst under the influence. Officers investigating a drink/drug driving incident should always approach the investigation from a Section 4 Unfit Offence before considering Section 5 and 5a Offences (prescribed and specified limits). There is legislation in force, with different limits in relation to alcohol, for specified persons working in railway, aviation and marine environments. This guidance details the requirements for training, enforcement and recording of data, to ensure that the Derbyshire Constabulary has a robust system of enforcement and auditing. The guiding legislation is: - The Road Traffic Act 1988 The Road Traffic Offenders Act 1988 The Transport and Works Act 1992 The Railways and Transport Safety Act 2003 Derbyshire Constabulary will ensure that the enforcement of drink/drug driving legislation is equitable and will work towards the reduction of drink/drug driving and the associated consequences of serious road traffic collisions. Enforcement of this legislation will only be carried out by trained officers. 4. Procedures There are forms to guide officers through each stage of the procedure in relation to drink/drug driving. It is important that the forms are followed, with no deviations, as they have been devised to cover all necessary evidential requirements. MG DD/A Drink/Drugs Station Procedure General 4

5 MG DD/B Drink/Drugs Station Procedure Specimens/Impairment supplement MG DD/C Drink/Drugs Hospital Procedure MG DD/D Alcohol Technical Defence Form MG DD/E Drug Sample Information Form MG DD/F Preliminary Impairment Test Roadside Observation Sheet Form 250 Breath Test Statement The most recent editions of these documents should be in the force forms folder. It is accepted that the forms may not cover every eventuality and any additional information should be included in the spaces provided. The MGDD series forms when completed should be considered as recall notes for any officer whom is subsequently required to give evidence, they are not a statement and on their own maybe inadmissible. Breath/Urine/Blood Alcohol Limits The limits prescribed in the Road Traffic Act 1988 are: - (a) (b) (c) 35 microgrammes of alcohol in 100 millilitres of breath. 80 milligrammes of alcohol 100 millilitres of blood. 107 milligrammes of alcohol in 100 millilitres of urine. Drivers providing specimens of breath between 36 and 39 microgrammes will not be prosecuted but given suitable advice. Drivers providing specimens of breath at 40 microgrammes or over will be prosecuted. Specified Drug Limits The limits specified by Section 5a of the Road Traffic Act 1988 are: - Cannabis (Delta 9 THC) Cocaine Benzoylecgonine Heroin Methamphetamine MDMA Ketamine LSD Benzodiazepine Morphine Methodone Amphetamine 2 ng/ml 10 ng/ml 50 ng/ml 5 ng/ml 10 ng/ml 10 ng/ml 20 ng/ml 1 ng/ml Various 80 ng/ml 500ng/ml TBD * ng refers to nanogrammes 5

6 Preliminary Testing and Screening Preliminary Testing refers to Breath Alcohol Screening, Drug Screening and Field Impairment Testing, these will be requested in compliance with the legislation. Preliminary Breath Testing There must be a waiting period of at least twenty minutes after drinking alcohol before a test is administered. Aromatic drinks (e.g. fruit juice), mouth sprays containing alcohol and medicines can interfere with measurements. A high concentration of tobacco smoke may affect the screening process. The driver should be requested to stop smoking and five minutes should be allowed before the test is carried out. Collisions If alcohol/drugs are suspected, drivers who are involved in collisions will be subject to preliminary testing. If the nature of any injury sustained prevents a breath test being carried out blood/urine will be requested subject to normal hospital procedures. All drivers, including every police officer driver, involved in a pursuit or other road traffic incident (RTI) where a death or serious injury (DSI) has occurred will be subject to preliminary testing including alcohol and drug screening, where considered necessary Field Impairment Testing will be carried out. The power to administer preliminary tests is not confined to incidents in which the police vehicle is directly involved in a collision. Drivers of police vehicles involved in a pursuit which results in a collision will also fall under these provisions, breath tests should be routinely administered for every driver, including the police officer drivers, involved in the incident. Random Breath Tests There is no power in law to carry out random breath tests. However, there is a power given under S163 RTA 1988 to carry out random checks on vehicles. If alcohol is subsequently suspected, then normal powers under S5 RTA 1988 should be used. Preliminary Impairment Tests Preliminary Impairment Testing is a method of determining whether or not there is a possibility that a driver has some substance in their body which for the time being renders them unfit to drive. Officers need to attend a two day ACPO accredited training course and to meet the required standard in order to be able to carry out Preliminary Impairment Tests. If an officer suspects that a driver may be impaired they should request the attendance of a trained Operational Support Department (OSD) Officer who will decide whether or not to carry out roadside impairment test. The test will be recorded on a MGDD/F. If a driver is arrested, as it is alleged they are unfit to drive through drink or drugs, a Police Surgeon or Health Care Professional (HCP) should be called to examine them. The primary function of the examination is to establish whether or not the condition of the accused is due 6

7 to illness and establish if there is a casual link between evidenced impairment and their current condition which is caused by a drug or alcohol. A positive drug screen provides a power to take an evidential sample without requiring a Doctor or HCP to assess the subject for a causal link, where the suspicion is a Section 4 Unfit Offence, this sample maybe blood or urine. Where only a Section 5a Over Specified Drug Limit is suspected only blood can be taken. All blood specimens must be taken by a Doctor or HCP. In most impaired drugs/driving cases the prosecution case will compromise four elements: - Eye witness evidence of erratic driving. Evidence of Preliminary Impairment carried out by OSD Officers. The opinion of the Police Surgeon or HCP after carrying out an examination that the condition may be due to drugs. Evidence from the Forensic Science Service that a drug capable of causing impairment was present in the defendant s body. Consideration should be given to Drug Screening where a positive test will speed up the evidence gathering process and save resources. Good Practice will include that the subject is subjected to an evidential breath test as some drugs when taken with alcohol cause increased impairment. Because of the large number of drugs affecting behaviour, as much information as possible should be provided to the FSS. The choice of blood or urine remains with the Police. Blood is preferred in such cases and it is recommended that at least 8 millilitres is taken. In cases involving solvent abuse blood should be obtained as soon as possible. The sample needs to be stored in a freezer and taken to the laboratory as soon as possible. The laboratory should be aware of the nature of the drug suspected as this affects the way it is dealt with. CS Gas If CS gas has been used on or near a person, an operator should wait 30 minutes after exposure before testing them on an evidential breath testing instrument. Where someone, who has been subject to CS gas is unable to provide two samples of breath for an evidential breath test, this could be due to medical reasons and operators should follow procedures set out in the National Drink/Drugs Pro-Forma Form MGDD. Doctors Where a person requests their own doctor be present during any medical examination or taking of laboratory specimens, this should be acceded to. It must be made clear to them that waiting for their own doctor will not delay any procedure and that they will be responsible for any fees incurred. It should also be made clear that their own doctor will not take any part in the procedure or the taking laboratory specimens unless their doctor and the Police Surgeon/HCP are one and the same. Blood/urine samples Blood/urine kits should be examined prior to use. If the seal is broken or the kit is out of date it should not be used. If anything is missing or damaged the whole kit should be discarded and another used. The instructions contained within each kit should be followed. 7

8 Blood samples in custody must be taken by a HCP/Doctor, this will normally be either a Police Surgeon or Custody Nurse if appropriately trained. Urine samples are taken by the officer dealing. There is no need for Police Surgeon/Nurse to be present. It is paramount that when urine is taken that two samples are taken, the first although discarded must be provided in a receptacle in order to be considered a sample. Samples should be stored as per the instructions with the kit. Samples will be despatched according to the local procedures set out within each Division. Each person required to provide a laboratory sample must be handed a list of Analytical Chemists, equipped to undertake the analysis of blood or urine samples to determine alcohol/drug content. The latest edition of this list must be made available at police stations for handing to persons who have provided a specimen of blood or urine and who may wish to have their part of the specimen independently analysed. Further copies of the current list can be obtained from Headquarters Stationery Store. Notwithstanding the above, offices must also ensure that when supplying a suspect with the list of Analytical Chemists, the suspect is advised to telephone the office of the chosen Analyst first to confirm that they are still able to undertake the work. The suspect must be advised to do this before despatching their sample to the chosen Analyst. Hospital Procedures Where procedures are carried out within a hospital environment the Medical Practitioner in charge of the patient must be informed of the intention to request samples. They may object on the grounds that the requirement, provision or warning may be detrimental to the proper care and treatment of the patient. Accurate details of this practitioner should be recorded for evidential purposes. Blood samples in hospital should be taken by a Police Surgeon/HCP as a primary option, this does not exclude use of a Registered Nurse or Paramedic if the former are unavailable or their use would cause undue delay. Police Surgeon/HCP call out can be arranged via the Force Control Room (FCR). In circumstances where the hospital is outside Derbyshire, the Inspector, FCR should be consulted for the protocol for calling out a Police Surgeon/HCP out of Force. There is no power accorded by legislation to arrest a suspect who is receiving hospital care. There is nothing to prevent an arrest once a patient has been discharged. Procedure for unconscious drivers is detailed within the Form MG DD/C. Training All frontline officers will be trained in the use of breath screening devices. ARU and Roads Policing Officers are trained in the use of Drug Screening devices. Nominated members of staff will be trained in the use of evidential devices and nominated Police Officers in the use of the Dräger Drugtest 5000 screening device. 8

9 Each device is calibrated and Calibration Certificates are issued in relation to the instrument and the simulator gas. These certificates are evidential documents and are retained by Criminal Justice. They are available for production at court if necessary. Force Liaison Officer The Inspector, Collision Investigation Unit will maintain overall responsibility for co-ordination in respect of all devices. Aviation Cases Current evidential devices cannot be used for the 9mg limit required for most R & TS Act 2003 aviation provisions, except for Licensed Maintenance Engineer where the limit is 35mg. In all other aviation cases blood/urine samples should be taken as appropriate. Hip Flask Defence Drivers may attempt to thwart proceedings in relation to excess alcohol by drinking, or claiming to drink, between the time of the offence and the time the requirement is made for a test. If a positive preliminary test is provided the officer should continue as they would with any other positive test. Consideration should be given to any claims made prior to arrival at the police station in respect of what may have been drunk. Officers should make contemporaneous notes where possible of any claims made. Any drinking vessel claimed to have been used should be seized. If there is still liquid within it then its level should be marked ad the liquid decanted into suitable storage container. Any empty bottles/cans/drink containers should be seized. Any part full bottles/cans/drink containers should be treated in the same way as drinking vessels i.e. levels marked and then sealed or decanted as appropriate. Any items seized should be exhibited appropriately. If any claim is made of post incident drinking then the suspect should be interviewed on tape whilst in custody in respect of this. The MG DD-D Alcohol Technical Defence form should be completed as part of the interview. National/TISPOL Campaigns Throughout the year there are National and European (TISPOL) campaigns targeting drink and impaired driving. These will be publicised via Chief Constable s Orders and Derbyshire Constabulary will support these campaigns. They require the collection of separate statistics and the means of doing this will be publicised well in advance of the campaign. 5. Monitoring and Review The monitoring and review of this guidance is the responsibility of the Head of Department, Operational Support and is carried out via Performance Delivery through statistical data collected on breath test devices. Any other activity in relation to this guidance will be monitored by existing systems. 9

10 6. Appeals Process If a member of staff has an issue with the content of this guidance they should raise this in the first instance with their Line Manager. Members of the public who take issue with the guidance have recourse to the police complaints system. 10

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