Roads Policing Excess Alcohol/Unfit Driving Offences PDF

Police College RP13 Roads Policing RP12 Excess Alcohol/Unfit Driving Offences Introduction Although the level of drink driving has dropped dramatically over the last three decades, around 250 people are...

Police College RP13 Roads Policing RP12 Excess Alcohol/Unfit Driving Offences Introduction Although the level of drink driving has dropped dramatically over the last three decades, around 250 people are still killed in drink drive incidents every year in the UK. In today’s society, drink driving has become socially unacceptable. Despite this, it is still a common occurrence and a major contributory factor in far too many road collisions. The term drink driving refers to a number of different offences which will be explored in this topic. Conviction for these offences will more often than not result in mandatory disqualification, a fine, possible imprisonment and internal discipline from your employer. Dealing with people for these offences can be difficult; you will be dealing with people under the influence of alcohol who may suddenly realise the consequences of their behaviour. All too often drink-driving cases are lost because police officers did not follow the correct procedure. It is therefore essential that you follow the specified procedures. Driving, or being in charge of, a motor vehicle with alcohol concentration above prescribed limit. ‘If a person: drives or attempts to drive a motor vehicle on a road or other public place, or is in charge of a motor vehicle on a road or other public place, after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit, he is guilty of an offence. Art 16(1) Road Traffic (NI) Order 1995 OFFICIAL [SENSITIVE] Page 97  Police College RP13 Points to Prove Drives or Attempts to drive or in charge of Motor Vehicle On a road Or Other public place; and the proportion of alcohol in breath or blood or urine exceeded the prescribed limit Proportion of alcohol limits Prescribed limit:  35 micrograms of alcohol in 100 millilitres of breath  80 milligrammes of alcohol in 100 millilitres of blood  107 milligrammes of alcohol in 100 millilitres of urine Breath samples can be analysed by machines held at some police stations and operated by specially trained officers. Blood samples are taken by a doctor or other registered Health Care Professional and analysed at a laboratory. Urine samples are taken by police officers and analysed at a laboratory. If the reading is in excess of the limits the offence is complete. OFFICIAL [SENSITIVE] Page 98  Police College RP13 Being in charge of a motor vehicle with alcohol concentration above the prescribed limit: ‘It is a defence for a person charged with an offence under paragraph 1(b) (in charge of a motor vehicle on a road or other public place) to prove that at the time he is alleged to have committed the offence the circumstances were such that there was no likelihood of his driving the vehicle whilst the proportion of alcohol in his breath, blood or urine remained likely to exceed the prescribed limit.’ Art 16 (2) R.T. (NI) Order 1995 Power to require Preliminary Breath Test Police officers are given powers under the Road Traffic (NI) Order 1995 to require a person to take a preliminary breath test (PBT). This breath test is a ‘screening’ process and indicates whether or not a person may be driving/ attempting to drive or in charge whilst over the prescribed limit. A person may also be required to co-operate with a PBT if suspected of being unfit through drink or drugs. You will be given ample opportunity to become familiar with the Lion Alcolmeter 500B which is the preliminary breath testing device the PSNI use. When completing your statement of evidence you will be required to use the following: “I was in possession of Lion Alcolmeter 500B preliminary breath testing device serial number ***** which was approved by the Department of the Environment on the 27th October 2008, such approval was published in the Belfast Gazette dated 31st October 2008”. Article 17 of the Road Traffic (NI) Order 1995 states that: A constable may require a person to co-operate with any one or more preliminary tests administered to the person by that constable or another constable if: A constable reasonably suspects that the person: OFFICIAL [SENSITIVE] Page 99  Police College RP13 a. is driving, is attempting to drive or is in charge of a motor vehicle on a road or other public place, and, b. has alcohol or a drug in his body or is under the influence of a drug. Art 17(2) Road Traffic (NI) Order 1995 Where a constable reasonably suspects that the person: a. Has been driving, attempting to drive or in charge of a motor vehicle on a road or other public place while having alcohol or a drug in his body or while unfit to drive because of a drug, and b. Still has alcohol or a drug in his body or is still under the influence of a drug. Art 17(3) Road Traffic (NI) Order 1995 Where a constable reasonably suspects that the person: a. is or has been driving, attempting to drive or in charge of a motor vehicle on a road or public place, and b. has committed a traffic offence while the vehicle was in motion. Art 17(4) Road Traffic (NI) Order 1995 A constable may administer a preliminary test by virtue of paragraphs (2) to (4) only if he is uniform. Art 17(7) Road Traffic (NI) Order 1995 Or if an accident occurs owing to the presence of a motor vehicle on a road or other public place, and a constable (uniform not required) reasonably believes that the person was driving, attempting to drive or in charge of the vehicle at the time of the accident. Art 17(5) Road Traffic (NI) Order 1995 A person commits an offence if without reasonable excuse he fails to co-operate with a preliminary test in pursuance of a requirement imposed under this Article. Art 17(6) Road Traffic (NI) Order 1995 OFFICIAL [SENSITIVE] Page 100  Police College RP13 Breath testing at authorised checkpoints (Article 17 CA) New legislation has recently been introduced allowing police to conduct checkpoint breath tests for people driving with excess alcohol. In practice what it means is:  An Inspector will authorise in writing the exact location, the hours of operation and the day/s when a vehicle check point (VCP) for breath testing purposes will be established.  This location will be in a public place and authorisation will be recorded on a form PBT1.  Officers can require a breath test from any driver stopped at such a VCP.  A checkpoint breath test is conducted using the same device as a PBT but officers should select ‘other’ on the Lion 500B as the reason.  Failure to comply with the requirement is an offence. Note: Police conducting a checkpoint breath test do NOT require suspicion of alcohol, that a moving traffic offence has occurred or that the driver has been involved in a RTC. A constable who is on duty at a checkpoint may require —  a person driving a motor vehicle stopped at the checkpoint, and.  any person in charge of such a vehicle, to co-operate with a checkpoint breath test administered to the person by the constable or another constable. Art 17CA (1) Road Traffic NI Order 1995 A checkpoint breath test administered in reliance on this Article may be administered only at or near the checkpoint; and a constable may administer such a test only if the constable is in uniform. A person commits an offence if without reasonable excuse he fails to co-operate with a checkpoint breath test in pursuance of a requirement imposed under this Article. OFFICIAL [SENSITIVE] Page 101  Police College RP13 Requirement for Preliminary/Checkpoint Breath Test The words of the requirement are printed out on an aide memoire (you will receive these in training) and shall be read to the suspect. It has been held that as long as you honestly and reasonably believe the person has heard and understood, it does not matter if they did not hear or understand. It can, however, be a defence to prove that the requirement was not understood. A constable may administer a preliminary/ checkpoint breath test only if they are in uniform however the requirement for uniform is not necessary in the case of a collision. Reasonable Excuse to fail to co-operate 17(6) & 17CA (6) A ‘reasonable excuse’ can be a defence to fail to co-operate with a breath test. ‘Reasonable excuse’ must arise out of a physical or mental inability to provide a specimen or be a substantial risk in its provision. Medical evidence will have to be called by the defence to prove the reasonable excuse. It could be held to be a reasonable excuse when the defendant is able to prove that they do not understand the requirement. Fails to co-operate This includes a refusal to provide. If the defendant tries to provide a sample but is unsuccessful this is still classed as a failure to provide a sample. A reference to a preliminary test is to any of the tests described in Articles 17A (preliminary breath test), 17B (preliminary impairment test), 17C (preliminary drug test) and 17CA (preliminary check point breath test). Preliminary Breath Test (Article 17A) 1. A preliminary breath test is a procedure whereby the person to whom the test is administered provides a specimen of breath to be used for the purpose of obtaining, by means of a device of a type approved by the department, an indication whether the proportion of alcohol in the person’s breath or blood is likely to exceed the prescribed limit. 2. A preliminary breath test under Article 17(2) to (4) may be administered only at or near the place where the requirement to co-operate with the test is imposed. OFFICIAL [SENSITIVE] Page 102  Police College RP13 3. A preliminary breath test administered under Article 17(5) may be administered: a. At or near the place where the requirement to co-operate with the test is imposed, or b. If the constable who imposes the requirement thinks it expedient, at a police station specified by him. Article 17A Road Traffic (NI)Order 1995 Preliminary Breath Specimens at a Collision All drivers of motor vehicles involved in a collision can be required to provide a PBT; who is to blame is immaterial. This comes from Article 17 (6) Road Traffic (NI) Order 1995. However to prevent claims of bias if one driver is required then all should be required. Preliminary Impairment Test (Article 17B) A preliminary impairment test is a procedure whereby the constable administering the test: Observes the person to whom the test is administered in his performance of tasks specified by the constable, and Makes such other observations of the person’s physical state as the constable thinks expedient. Article 17B (2) Road Traffic (NI) Order 1995 A preliminary impairment test may be administered at or near the place where the requirement to co-operate with the test is imposed, or if the constable who imposes the requirement thinks it expedient, at a police station specified by him. Article 17B (4) Road Traffic (NI) Order 1995 If you stop a driver at night time on an unlit country road it may be more prudent to conduct a Preliminary Impairment Test (PIT test) at a Police Station. The person will not be under arrest; however, if they fail to accompany you to the Station they are failing to cooperate. A police officer administering a preliminary impairment test must be approved for the purpose by the Chief Constable. Article 17B (6) Road Traffic (NI) Order 1995 OFFICIAL [SENSITIVE] Page 103  Police College RP13 PIT test can include various tests such as a pupillary examination, balance, a walk and turn, a one leg stand and a finger to nose test. Preliminary drug test as per Article 17C; although it is in legislation, it is not routinely done in Northern Ireland due to unavailability of drug testing kits at present but you need to be aware of it as one of the preliminary tests. Power of arrest: (Article 17D) A constable may arrest a person without warrant if, as the result of a preliminary breath test or checkpoint breath test the constable reasonably suspects that the proportion of alcohol in the person’s breath or blood exceeds the prescribed limit. Art 17D (1) Road Traffic (NI) Order 1995 A constable may arrest a person without warrant if: The person fails to co-operate with a preliminary test in pursuance of a requirement imposed under Article 17 or a check-point breath test under article 17CA, and The constable reasonably suspects that the person has alcohol or a drug in his body or is under the influence of a drug. Art 17D (2) Road Traffic (NI) Order 1995 A person may not be arrested under this Article while at a hospital as a patient. Art 17D (3) Road Traffic (NI) Order 1995 Power of entry (Article 17E) A constable may enter any place (using reasonable force if necessary) for the purpose of: Imposing a requirement under Article 17(5) (PBT at collision involving motor vehicle) following an accident in a case where the constable reasonably suspects that the accident involved injury of any person, or Arresting a person under Article 17D following an accident in a case where the constable reasonably suspects that the accident involved injury of any person. Article 17E Road Traffic (NI) Order1995 You have a power of entry to arrest a person if the person has failed a preliminary breath test 17D (1) or failed to co-operate with a preliminary test and you suspect alcohol or a drug in the body or they are under the influence of a drug 17D (2); but you must reasonably OFFICIAL [SENSITIVE] Page 104  Police College RP13 suspect for any of these powers of entry that there has been injury to any person (including the suspect) as the result of an RTC. You have the power to enter to demand preliminary tests if: You know there has been an RTC, AND Reasonably suspect injury to any person, AND Believe the person of whom you are requiring a PBT was driving, attempting to drive or in charge of the vehicle at the time of the RTC. Fails to Co-operate A person does not co-operate with a preliminary test or check-point breath test or provide a specimen of breath for analysis unless his co-operation or the specimen: is sufficient to enable the test or the analysis to be carried out; and is provided in such a way as to enable the objective of the test or analysis to be satisfactorily achieved. Art 13(3) R.T. (NI) Order 1995 When a driver fails or refuses to co-operate with a preliminary test or check-point breath test, and there is no cause to suspect alcohol in the body, as could be the case after a road collision or VCP, there is no power of arrest, the driver should be reported for summons. Breath Test Procedure Where a police officer has the power to require a preliminary breath test or check-point breath test under Article 17 of the Road Traffic (NI) Order 1995 the preliminary breath/ check-point breath test aide memoire should be followed. The requirement and questions must be read out to the motorist and their answers recorded. Where a motorist discloses that they have consumed alcohol within the preceding 20 minutes, police should ask the motorist if they wish to wait 20 minutes to allow any mouth alcohol to disperse. Should a motorist subsequently decline to wait 20 minutes when so advised, the officer should then proceed and carry out the test. OFFICIAL [SENSITIVE] Page 105  Police College RP13 This is completely voluntary; police have no power to detain a motorist for the purposes of allowing the 20-minute period to elapse. The motorist is not allowed to leave and return and any attempt at such action should be treated as a failure to provide a sample of breath for analysis. The motorist should be warned accordingly and if alcohol or drugs suspected, the motorist must be arrested. Any smoke/vape blown into the device may cause damage therefore it is best to wait two minutes before taking a sample. Do not re-use the mouth piece except in the case of a repeat blow by the same subject. Evidential Samples (Art 18) When someone is being investigated for: An offence of Causing death, or GBI, by careless driving when under influence of drink or drugs (Art 14) An offence of Driving/Attempting/In Charge Whilst Unfit through drink and/or drugs (Art 15) or An offence of Driving/Attempting/In Charge on a public road or other public place after consuming so much alcohol that the proportion of it in him breath, blood or urine exceeds the prescribed limit (Art 16) Then evidential samples need to be obtained. This can be done at Police Station OR in a hospital. If alcohol levels are being investigated then this must be done by evidential breath testing using the Lion Intoxyliser 6000 located in custody suites however this can only be done by an officer trained and authorised to do so. If no device is working or no authorised officer is available or the subject is unable to supply evidential breath samples then any officer can require an evidential blood or urine sample instead. ‘A person who without reasonable excuse fails to provide a specimen when required to do so in pursuance of this Article is guilty of an offence.’ OFFICIAL [SENSITIVE] Page 106  Police College RP13 Hospital Procedures The hospital procedure is laid out on form DD/C available from the service forms area of the Police Intranet. Points to remember are: The Hospital Procedure is an EVIDENTIAL Procedure There is no requirement for the person to be arrested or for preliminary tests to have been carried out for this Evidential Procedure to be completed. Only the medical practitioner (Doctor) in immediate charge of the patient can object to police carrying out the procedure and the only grounds on which they can object is that the procedure would be prejudicial to the proper care and treatment of the patient. (Remember you can ask the Doctor to reassess at a later time) The evidential procedure is not complete until the subject has refused the Evidential Requirement or the subject has supplied an evidential sample. Unfit through Drink or Drugs This is a separate offence to driving with excess alcohol. There is no legal limit with this offence BUT police must prove that the driver was, at the time they were driving unfit or impaired and that this impairment was due to alcohol and/or drugs. OFFICIAL [SENSITIVE] Page 107  Police College RP13 Definition ‘A person who, when driving or attempting to drive a mechanically propelled vehicle on a road or other public place, is unfit to drive through drink or drugs, is guilty of an offence.’ Art 15 (1) Road Traffic (NI) Order 1995 ‘A person who, when in charge of a mechanically propelled vehicle which is on a road or other public place, is unfit to drive through drink or drugs, is guilty of an offence.’ Art 15 (2) Road Traffic (NI) Order 1995 ‘A person shall be deemed not to have been in charge of a mechanically propelled vehicle if he proves that at the material time the circumstances were such that there was no likelihood of his driving it so long as he remained unfit to drive through drink or drugs.’ Art 15 (3) Road Traffic (NI) Order 1995 ‘The Court may, in determining whether there was such a likelihood as is mentioned in paragraph (3), disregard any injury to him and any damage to the vehicle.’ Art 15 (4) Road Traffic (NI) Order 1995 Unfit A person is unfit to drive if their ability to drive properly is for the time being impaired. Art 15(5) Road Traffic (NI) Order 1995 There are effectively three elements to driving whilst unfit. 1. Good evidence of impairment (manner of driving, e.g. – hitting the kerb, driving across the central reservation line, excessive braking, etc., and/or drivers condition, e.g. – OFFICIAL [SENSITIVE] Page 108  Police College RP13 inability to stand unaided, falling asleep, etc.). 2. Analysis of an evidential specimen(s) proving the presence of alcohol and/or drugs. 3. Evidence to support that the impairment was due to the presence of the alcohol and/or drugs. In a police station, a doctor’s opinion that the motorist is in a condition that may be due to a drug is crucial. Without this police cannot require the motorist to provide evidential blood/urine specimens in an unfit through drugs case. It also important to remember that even though a driver may be processed and provide breath, blood or urine specimens, the subsequent reading will not be enough alone to convict for unfit. You also have to show in your statement that the person’s ability to drive was, at the time they were driving, impaired. Drugs ‘Includes any intoxicant other than alcohol’ Art 13(2) R.T. (NI) Order 1995 A person who was glue sniffing prior to driving a vehicle was correctly convicted of driving whilst unfit. Bradford v Wilson 1984 Procedure at Scene Always require/carry out PBT if the vehicle can be classified as a motor vehicle. If more impairment evidence is needed consider requesting a trained officer to carry out a Preliminary Impairment Test. Provided that reasonable grounds are satisfied the driver should be arrested at the scene or other place (POA Article 26 PACE) If applicable carry out a search on the driver under Article 34 PACE and specify grounds. Secure vehicle - remove valuables at owner’s request. Motorists who are suspected of being unfit to drive should be arrested and brought to a police station to obtain evidential specimens of breath, blood or urine. OFFICIAL [SENSITIVE] Page 109  Police College RP13 Power of Entry Article 19 1(ba) PACE (NI) Order 1989 – Power to enter a premises to arrest a person under Article 15 of the Road Traffic (NI) Order 1995. Causing Death or Grievous Bodily Injury by Careless Driving when Under the Influence of Drink or Drugs Definition - Article 14 (1) Road Traffic (NI) Order 1995 Causing death, or grievous bodily injury, by careless driving when under the influence of drink or drugs. If a person causes the death of or grievous bodily injury to, another person by driving a mechanically propelled vehicle on a road or other public place without due care and attention, Or without reasonable consideration for other persons using the road or place, and: a) He is, at the time, when he is driving; unfit to drive through drink or drugs. (Refers to MPV & MV). Or b) He has consumed so much alcohol that the proportion of it in his breath, blood or urine, at that time, exceeds the prescribed limit. (MV ONLY). Or c) He is, within 18 hours after that time, required to provide a specimen in pursuance of Article 18, but without reasonable excuse fails to provide it. (MV ONLY) Or d) He is required by a constable to give his permission for a laboratory test of a specimen of blood taken from him under Article 18A, but without reasonable excuse fails to do so. (MV ONLY) All of the above, a, b,c,d he is guilty of an offence. OFFICIAL [SENSITIVE] Page 110  Police College RP13 Cycling when under Influence of Drink or Drugs A person who, when riding a cycle on a road other public place, is unfit to ride through drink or drugs (that is to say, is under the influence of drink or a drug to such an extent as to be incapable of having proper control of the cycle) is guilty of an offence. Article 44 Road Traffic (NI) Order 1995 This is proven by an officer’s observations. No preliminary or evidential test can be administered, as the vehicle would need to be a motor vehicle or MPV. OFFICIAL [SENSITIVE] Page 111