Scottish Police Probationer Training - Road Traffic Act 1988 - Drink Driving PDF

OFFICIAL Unit 9 Lesson 10.1...

OFFICIAL Unit 9 Lesson 10.1 Section 5, Road Traffic Act 1988 Drink Driving Lesson Aim: The learner will be able to apply the legislation governing driving whilst over the prescribed limits and driving whilst unfit through drink or drugs Learning Outcomes: Introduction On successful completion of the lesson, It is widely understood that the consumption students will be able to:- of drink or drugs can have an impact on a person’s ability to drive safely. 1. Describe the offences contained in There are specific offences in the Road Section 5 of the Road Traffic Act 1988 Traffic Act 1988 that deal with driving under the influence of drink or drugs. These will be 2. Detail tests and observations required to explained throughout this unit. be noted when dealing with persons suspected of offences under 5 of the Road Traffic Act 1988 3. Conduct roadside procedures in relation to Section 6 of the Road Traffic Act 1988 4. Explain the procedure to be followed at a police station and hospital when a person has been arrested in connection with driving whilst over prescribed alcohol limits 1 th Amended 19 April 2024 v.4 OFFICIAL  OFFICIAL Unit 9 Lesson 10.1 Section 5, Road Traffic Act 1988 - Drink Driving Section 5 Road Traffic Act 1988 It is an offence for any person to drive, attempt to drive or be in charge of a motor vehicle on a road or other public place having consumed alcohol in such quantity that the proportion of alcohol in their breath, blood, or urine, exceeds the prescribed limit. Activity 1 A1 Consider Section 5 detailed above. What do you think is meant by the following? Drive, attempt to drive or be in charge of Road or other public place Drive A person is held to be driving when they have control of the speed and direction of the vehicle. This includes:- Being towed where the person in the towed vehicle has control of steering and braking (Rope tow not rigid tow). Pushing a car and jumping into it as it gathers speed. Where the vehicle is stopped, providing that the stoppage is due to some purpose connected with driving (stopped at traffic lights, or to get fuel). It is held that a person is “driving” within subsection above, not only when the car is in motion, but also when it is temporarily stopped and even if the person leaves the car for purposes connected with driving, such as filling up with petrol, or changing a wheel. 2 Road Policing OFFICIAL  OFFICIAL Unit 9 Lesson 10.1 Section 5, Road Traffic Act 1988 - Drink Driving Attempt to Drive This means when the person has made some positive act to put the vehicle in motion, but has failed to do so (e.g. trying to put the vehicle in gear, or trying to start the engine). In Charge Proving this will depend on individual circumstances but possession of the ignition key and proximity to the driving position would normally be taken into account. Case Law A person supervising the driving of a learner-driver was charged with being in charge of a motor vehicle while under the influence of drink (Clark v Clark, 1950 S.L.T) There were circumstances in which it was held that a driver who was about 3 yards from his motor van was nevertheless in charge of it (Leach v. Evans, 1952,2 All E.R. 264; 116 J.P. 410) In establishing a defence under Section 5(2) above, it is not necessary for an accused person to prove “beyond all reasonable doubt” that there was no likelihood of his driving at the material time. Held, that the standard of proof to be applied was that of the “balance of probability” (Neish v. Stevenson, 1969 S.L.T. 229.) Feedback 1 F1 Refer to the Lesson Note - Introduction to Road Policing for definitions of Drive, Attempt to Drive and Road:- Be in charge of is subjective and will depend on the circumstance, but generally in possession of the ignition key and close to the driving seat. Other public place means anywhere the public have a right of access at the material time, whether on payment or otherwise. 3 Road Policing OFFICIAL  OFFICIAL Unit 9 Lesson 10.1 Section 5, Road Traffic Act 1988 - Drink Driving Prescribed Limits The offence in Section 5 of the Road Traffic Act refers to the proportion of alcohol in their breath, blood, or urine, exceeding the prescribed limit. The prescribed limits specifically look at the individual and the levels of alcohol within that individual’s body. The prescribed limits in place for breath, blood and urine are as follows:- Breath: 22 microgrammes (22ug) of alcohol in 100 millilitres of breath; or Blood: 50 milligrammes (50mg) of alcohol in 100 millilitres of blood; or Urine: 67 milligrammes (67mg) of alcohol in 100 millilitres of urine. If the breath sample provided shows a reading of between 0ug and 22ug the law provides that no proceedings are taken. The Lord Advocate has instructed that a driver who provides two specimens of breath, the lower reading of which is in the range 23-26ug inclusive, is not to be reported to the Procurator Fiscal. Public Place A public place is any place to which the public have right of access whether on payment or otherwise at that time. There may be occasions when only a court will be able to decide whether or not a place is a public place. Case Law There are several decisions regarding the meaning of “public place” and the following have been held to be “public places”:- A road leading from the public road to a farmhouse. The road had no gate and at times was used by people with no business at the farm (Harrison v. Hill 1932 J.C. 13.) A field used for a race meeting to which the public had access. The organisers had invited certain members of the public (those attending the show) to use the official area, which became a public place (R. v. Collinson, 1931, 23 Cr. App. R. 49 and Paterson v. Ogilvy, 1957 S.L.T. 354.) 4 Road Policing OFFICIAL  OFFICIAL Unit 9 Lesson 10.1 Section 5, Road Traffic Act 1988 - Drink Driving The carpark of a public house - Applying the same reasoning as Paterson (above), viz. the proprietors were impliedly asking patrons of the public house to use the carpark (Vannet v. Burns, 1998 S.C.C.R. 414.) The forecourt of a hotel which was used not only to reach the hotel but also as a short cut from one street to another (Bugge v. Taylor, 1940, 104 J.P. 467.) The driveway from a public road to a hotel (Dunne v. Keane, 1976 J.C. 39.) The playing field area of school grounds, after school hours, used as a leisure park by children and older persons (Rodger v. Normand, 1994, S.C.C.R. 861.) The public generally must be shown to have access to the place in question with either the explicit or tacit consent of the person in charge. (Alston v. O’Brien, 1992 S.C.C.R. 238.) Section 6 Road Traffic Act 1988 - Road Side Test Section 6 Road Traffic Act, 1988 provides officers with the power to require a specimen of breath where it is believed an offence under Section 5 has or is being committed. A Constable in uniform may require a person who is or has been:- driving, attempting to drive or, in charge of a motor vehicle; on a road or other public place; to supply a specimen of breath for a breath test if the Constable has reasonable cause to suspect that:- 1. the person has alcohol in their body; or 2. the person has committed a moving traffic offence; or 3. the person was involved in a road traffic collision, (uniform not required). Note:- Uniform is not required after a collision because following this, the vehicle is legally required to stop. In the other cases the officer is required to be in uniform to stop the vehicle. 5 Road Policing OFFICIAL  OFFICIAL Unit 9 Lesson 10.1 Section 5, Road Traffic Act 1988 - Drink Driving Conducting the Test When using this power to require a breath specimen, officers should always use the same statement and question as follows:- “I have reasonable cause to suspect that you have:- (alcohol in your body); or have (committed a traffic offence whilst the vehicle was in motion); or have (been involved in a collision) and in terms of Section 6 of the Road Traffic Act 1988, I require you to provide a specimen of breath for a breath test. I must warn you that failure to provide such a specimen without reasonable excuse is an offence and may render you liable to prosecution. Do you agree to provide a specimen of breath for a breath test and if not what is your reason for refusing?” Any reply made should be noted verbatim. If there is knowledge or belief that the person has consumed alcohol within the preceding 20 minutes, the breath specimen should not be taken until 20 minutes have elapsed. Such delay ensures that a misleading result is not registered due to mouth alcohol. This should be explained to the person. Key Information KI Prior to conducting a test, you MUST activate the TXI feature on your airwave terminal. What if a person fails to give a breath test? It is an offence under Section 6(6) of the Act for any person to fail, without reasonable excuse, to provide such a specimen when so required. Power of Arrest Whether or not a person suspected of committing a Section 5 offence is arrested depends upon the result of the requirement for a breath specimen. 6 Road Policing OFFICIAL  OFFICIAL Unit 9 Lesson 10.1 Section 5, Road Traffic Act 1988 - Drink Driving The power of arrest is under Section 6 Road Traffic Act 1988 and NOT Section 1 Criminal Justice (Scotland) Act 2016. A person should be arrested only under the following circumstances:- They provide a positive breath test; or They fail or refuse to supply a breath specimen but only where the Constable suspects their body contains alcohol. The person should be under no doubt that they are under arrest and the words "I arrest you" should be used. Key Information KI Where a person refuses, without reasonable excuse, to supply a breath specimen but the Constable does not suspect that they have alcohol in their body, that person can be cautioned and charged and reported to the Procurator Fiscal Entry to Premises There is no mention under Section 6 legislation as to whether or not the police are justified in entering premises in order to require a breath specimen. The Lord Advocate’s advice on the matter can be summarised as follows:- If a Constable has reason to believe that a suspect is within premises they may enter the premises by force if necessary in order to obtain and preserve evidence if it is in the interest of justice to do so. But they may only do so in the following circumstances:- In cases involving a road traffic collision (whether the police were in ‘hot pursuit’ or not), or In cases where the person is suspected of committing any drink driving offence, but in the absence of any collision, only if the police are in ‘hot pursuit’. 7 Road Policing OFFICIAL  OFFICIAL Unit 9 Lesson 10.1 Section 5, Road Traffic Act 1988 - Drink Driving Activity 2 A2 1. You are on mobile patrol in Mill Road, Brookbank with a colleague when you observe the motor car in front being driven erratically, the vehicle narrowly missing parked cars. You stop the car. On approaching the driver you detect the smell of alcohol on his breath. He says his actions on the road are due to being lost as he is not used to driving in this area. Due to his manner of driving and the smell of alcohol from his breath you require him to provide a specimen of breath. He refuses to do so, what action would you take and why? 2. While on plain clothes patrol, you respond to a call from the Copper Lounge, Kincardine, reporting that a male has left the pub and entered a vehicle. He is sitting in the driving seat and the engine is running. On attending, the male is sleeping with his head on the steering wheel, the engine is running and the lights are on. 3. You are called to the scene of a road traffic collision where upon arrival, you notice a vehicle has left the roadway and collided with a farmer’s fence, demolishing it completely. You see one male standing near to the vehicle and he has injuries consistent with the damage to the vehicle. Upon speaking to the male, he states that he was driving. What course of action should you take next and why? 8 Road Policing OFFICIAL  OFFICIAL Unit 9 Lesson 10.1 Section 5, Road Traffic Act 1988 - Drink Driving Feedback 2 F2 1. As you have detected alcohol on his breath you have a right to require a specimen of breath. As he has refused to provide a specimen of breath, you would have the power to arrest him. 2. There is two strands to this answer. a. As you are on plain clothes patrol, you would need to request a uniform officer attend for the Sec 6 requirement. b. However, this person is in charge of a motor vehicle. This would require to be evidenced by means of statements from witnesses or consideration of circumstances etc. 3. As you have reasonable cause to suspect the male was involved in a road traffic collision (not withstanding possible further charges relating to the manner of his/her driving) you have the power to require him to provide a specimen of breath for a breath test under the provisions of Section 6 Road Traffic Act 1988. (Consideration should be given to using section 172 RTA1988 to confirm the identity of the driver of the vehicle in these circumstances prior to requiring the specimen) Section 7 Road Traffic Act 1988 - Station Procedure Having arrested the suspect under Section 6 of the Act, that person will be conveyed to a suitably equipped police station where they are subject to the requirements of Section 7 of the Act. This involves requiring suitable samples of breath, blood or urine from the suspect so that the exact quantity of alcohol in the sample can be measured. If it subsequently shows that the suspect has alcohol in excess of the prescribed limit they can then be prosecuted for contravention of the Section 5 Drink Driving offence. 9 Road Policing OFFICIAL  OFFICIAL Unit 9 Lesson 10.1 Section 5, Road Traffic Act 1988 - Drink Driving The most common way of obtaining a sample for analysis is by requiring two specimens of breath from the arrested person. The sample is taken using a breath analysis machine at a police station. The police normally use this method as a sample of blood or urine can only be obtained at the police station in the following circumstances:- The breath analysis machine is unavailable or broken down or In the opinion of the Constable the person has a reasonable excuse for failing to provide specimens (e.g. medical reasons) or If there is reasonable cause to believe the device has not produced a reliable indication of the proportion of alcohol in the breath Note:- Any sample of blood that is required would need to be obtained by a doctor or forensic nurse in this instance in the presence of a police officer. Offence It is an offence under Section 7 to fail to supply a specimen of breath, blood or urine, without reasonable excuse. In every police office where there is a breath analysis machine there will be forms which will include a step-by-step guide on how to proceed Hospital Procedure When a person suspected of a Section 5 offence is admitted to hospital a different procedure must be carried out, both in relation to breath tests and specimens for analysis. The following three main differences apply to the procedures at hospital. 1. At hospital, the suspect is the responsibility of the doctor in charge. The investigating officer must inform the doctor that it is their intention to make all requirements in respect of the patient. The doctor in charge may object to any one of the requirements or requests, on the grounds that it may be prejudicial to the proper care or treatment of the patient. 10 Road Policing OFFICIAL  OFFICIAL Unit 9 Lesson 10.1 Section 5, Road Traffic Act 1988 - Drink Driving 2. The patient in hospital cannot be arrested under Section 6 of the Act. 3. Because breath analysis machines are not available at hospitals, blood or urine are the only alternatives for analysis. Provided that these three differences are taken into account, the procedures are similar to that used at the locus and police station. There are forms relating to hospital procedure which include a step-by- step guide. Other Forms of Transport This lesson note has focused exclusively on road users. You should, however, be aware that other forms of transport now have similar provisions in place. The railway, shipping and aviation industries have been consolidated under the Railways and Transport Safety Act 2003. This piece of legislation contains similar testing procedures and prescribed limits for those working in these fields. 11 Road Policing OFFICIAL  OFFICIAL Unit 9 Lesson 10.1 Section 5, Road Traffic Act 1988 - Drink Driving For further information, use the resources shown below:- Legal Database:- Road Traffic Law - Legislation - Road Traffic Act 1988 - Part I - Motor Vehicles: Drink and Drugs Review: You can describe the offences contained in Section 5 of the Road Traffic Act 1988 You can detail tests and observations required to be noted when dealing with persons suspected of offences under 5 of the Road Traffic Act 1988 You can conduct roadside procedures in relation to Section 6 of the Road Traffic Act 1988 You can explain the procedure to be followed at a police station and hospital when a person has been arrested in connection with driving whilst over prescribed limits 12 Road Policing OFFICIAL  OFFICIAL Unit 9 Lesson 10.1 Section 5, Road Traffic Act 1988 - Drink Driving Learning Log: How will what you have learned in this module impact your day-to- day role? Are there any skills or knowledge you would like to develop further following this module? End of Module 13 Road Policing OFFICIAL  OFFICIAL Unit 9 Lesson 10.1 Section 5, Road Traffic Act 1988 - Drink Driving 14 Road Policing OFFICIAL