Flashcards in Drink, Drugs And Driving Deck (91):
What are the differences between unfit and over the limit for alcohol/drugs when it comes to MPV and motor vehicles?
Unfit through drink or drugs is MPV and the others are motor vehicle
Is it believe or suspect that the person has driven or attempted to charge or been in charge of a motor vehicle whilst over prescribed limit/unfit?
Neither - it must be proven that the person has driven...
Is it an offence to drive over the limit on private land?
Does insulin count as unfit?
Yes if there is clear evidence of an overdose
Can a doctor or medical expert give evidence even if the suspect refused to be examined in drink drive cases?
Yes - they can give evidence as to their fitness.
I am pissed and sleep in my car. I am arrested for drunk in charge. Am i guilty?
I would have to prove on the balance of probabilities that at the time, the circumstances were such that there was no likelihood of them driving, so long as they remained unfit through either drink or drugs.
A court may disregard any injury to me or damage to my car in determining whether i was likely to drive.
Under section 17, what powers of entry and search are afforded to me for road traffic offences>
Section 4 RTA - driving whilst unfit
Section 163 RTA - failing to stop when required by a Constable in uniform
Provided i have rgb that the person sought is on the premises
What are the legal limits?
35 - breath
80 - blood
107 - urine
All add to 8
Do i have to prove how far the suspect has exceeded the legal limit with an exact figure?
No - just that it was exceeded
Who is eligible for the high risk offender scheme for drink drivers?
Those that are more than two and a half times over the limit or the conviction is their second or more in ten years.
Anyone in this must undergo a medical prior to being allowed to regain their licence.
what are the defences to drug driving?
1. On the balance of probabilities they were unlikely to drive if drunk in charge
2. That the drugs were prescribed or supplied for medical or dental purposes and that they followed the directions from person prescribing or instructions on pack and the possession of the drug was not unlawful
Suspect is charged for drug driving. Suspect was proscribed medication. How does the burden of proof work?
If the defence can adduce sufficient evidence to raise a doubt that their defence is true, then the burden shifts to the prosecution to disprove it beyond all reasonable doubt.
What is the difference suspicion or belief element to requesting a test?
Suspect for all apart from accident - then it is KNOW that an accident has taken place and BELIEF that they were driving.
I require someone to provide me with a specimen of breath. However they swear and although they don’t refuse, their attitude suggests that they are not willing to provide one. Is this sufficient to prove failing to provide?
Yes - a persons attitude or conduct after being required to give a breath specimen may be sufficient to make out the offence and evidence of the officer witnessing the attitude or conduct will suffice as proof that it amounted to a failure or refusal.
Can you arrest someone that just fails to provide?
Only if the Constable suspects that the person has alcohol in their body, has a drug in their body or is under the influence of a drug.
Can you arrest for failing to provide at a hospital?
What are the powers of entry following an accident?
A Constable KNOWS there has been an accident
They BELIEVE the suspect has been driving/attempted etc of a MOTOR VEHICLE
They SUSPECT that the accident involved injury to the driver or any person
They may enter any place to:
- impose a requirement for a test
- arresting a person if as a result of a test, they suspect over the limit
- arresting someone that has failed to cooperate with a test where the officer suspects alcohol/drugs
A suspect is stopped by police and walks onto the driveway of another. Can the officer require a sample of breath or are they a trespasser?
A police officer has an implied licence to be on a persons driveway or doorstep until the license is withdrawn by the owner (told to leave).
At this point they trespass and they cannot make a requirement for a test and any arrest will be unlawful.
Must Constables always be in uniform to make the requirement to provide?
Yes unless it is an accident, then the requirement can be made by an officer not in uniform
How many evidential samples of breath must be made?
2 - any lower and it is failure to provide
There are 5 situations where we take blood or urine instead of breath. What are they?
Medical reason - rgb that for medical reasons it cannot or should not be provided
Intoximeter unavailable or impractical
Intoximeter unreliable - specimens obtained but Constable has rgb it has produced an unreliable reading
Believe drug in system - rgb
Medical advice RE drugs - the Constable has been advised by a medical practitioner that their condition is due to a drug
What happens if someone provides a specimen of breath but i think the machine is talking bollocks?
If i have rgb that the intox is unreliable, then i can go to urine or blood
My suspect is struggling to breathe and i have rgb that a specimen of breath cannot or should not be requested. Do i need medical opinion before i request blood or urine?
Is being too drunk a medical reason for not providing a breath sample and therefore blood/urine should be taken?
Suspect arrested for drink drive. No trained officers available. Now what?
It is impractical and therefore goes to blood or urine
If the intox is faulty, could a suspect be transferred to another station to do the procedure?
Who decides whether we take blood or urine?
I do however a medical person can overrule me if they have been asked to take it and their opinion is that a specimen of blood should not be taken for medical reasons.
Their decision can however be overruled if it is a registered health care professional. A registered medical practitioner is higher and can overrule them.
Should the fact that someone is scared of needles be taken into consideration as to whether we take blood?
I have decided to take blood. Must i ask the suspect whether they have any medical conditions?
Yes - must ask them and if the condition is reasonable, then offer urine. If the grounds are unreasonable, take a blood sample unless the person doing the sample objects.
Does the defendant have a right to part of the urine sample?
There is no free standing right for the defendant to be informed of their entitlement to part of the sample
must the suspects urine be divided up in their presence?
No- it must be divided ‘at the time’ but nothing says in their presence
How many specimens of urine must be taken?
2 distinct specimens from 2 separate acts of urination. You cannot just divide up 2 pots from one urination.
How long does the suspect have to urinate?
One hour - anyone outside of this will be charged with fail to provide.
The suspect has got to an hour however the Constable thinks they want to give them an extra ten minutes to provide a urine sample. Is this permitted?
Yes - they can extend it but don’t have to. If they do, it does not mean the sample is inadmissible.
Lucy has had a crash and is unconscious. Can we get a sample of blood?
Yes provided it has not been blocked by a medical practitioner
Who can be requested to come and take the sample of someone incapacitated after an accident?
Police medical/healthcare practitioner
Unless it is not practicable to request or take the specimen
Then any non-police practitioner can as long as they do not have responsibility for their care
A sample has been obtained from an incapacitated person from hospital. Must the practitioner give you the sample?
Only if they see fit to do so
I have taken blood. The person later wakes up in hospital. Do i need to inform them of anything?
Yes i have to tell them blood was taken, ask them permission for the specimens to be tested and warn them of the consequences of refusing.
They can have legal advice first as the specimens has already been obtained.
Can we keep a drink driver in custody without charge if they are still drunk?
Section 10 of the Road Traffic Act 1988 allows for the detention of a person who has provided a specimen of breath, blood or urine, until it appears to a constable that were the person to drive a mechanically propelled vehicle on a road, he or she would not be committing an offence. The power does not apply if it appears to a constable that there is no likelihood of the person driving such a vehicle on a road. There is no mention of a person having been charged or reported for an offence, merely that they have been required to provide the relevant sample.
Under s. 10(3), a constable "must" consult a medical practitioner on any question arising under this section whether a person’s ability to drive properly is or might be impaired through drugs. The constable must act on such advice. This is mandatory.
If Lucy buys me a drink in a club, is there any obligation on me to check whether it contains alcohol if i am driving?
Where a person has been charged with driving whilst exceeding the prescribed limit, the Divisional Court has held that there is "some" positive duty on a person to enquire whether a drink contains alcohol before drinking it if that person intends to drive afterwards (see "Robinson v DPP"  EWHC 2718);
Must you give a warning about failing to provide before charging someone?
Yes - someone must (custody sgt/Constable)
Can you request samples from people not driving motor vehicles?
No - must be a motor vehicle
E.g - dumper truck - only section 4 arrests apply
Crash i witnessed in oxford. Matey boy comes out with curry on him. As i am in plain clothes, can i require and administer a breath test?
Yes as it is an accident.
I must know that there has been an accident. I must have rgb that they were driving or were in charge.
How can we prove unfitness?
Expert witness (normally a doctor that has examined them but can also be one that hasn’t if they have refused to be examined)
We know that a lay witness can provide evidence as to someone’s unfitness. What evidence can they actually provide?
Defendant’s condition only.
An expert can also give evidence as to whether the person was unfit.
A lay witness cannot give evidence as to the defendant’s ability to drive.
If a police officer is convicted of drink driving, what sanction do they get?
Dismissal or requirement to resign is the NORMAL punishment but it does not stipulate that they MUST be.
We know that you only need to suspect alcohol in system to require a specimen of breath. What about accidents?
I must KNOW an accident has occurred on a road or public place.
And BELIEVE that the person was driving/attempting/in charge at the time of the accident.
No need to be in uniform.
Where must preliminary breath tests take place?
Non accidents - only at or near where requirement was made
Accidents - at or near or if expedient at a specified police station
Where must preliminary impairment tests take place?
Whether accident or not, at or near the place where the requirement was made. Or if expedient at a police station.
Is telling officers to fuck off sufficient to show that the officer is trespassing on their land?
If officers trespass and require breath tests, are the subsequent samples inadmissible?
The arrest would be unlawful and the sample MAY be excluded. Not necessarily excluded.
The Crown Court was of the opinion that, in order to exercise the discretion under the PACE 1984, s. 78, it must find that the police officers were knowingly acting in excess of their powers, and therefore acting in bad faith, and that evidence had been obtained other than voluntarily. In allowing the appeal, Woolf LJ stated that the approach of the Crown Court was wrong (at p. 347): "… it was at least open to the Crown Court, if the matter had been properly left before them, for them to have come to a conclusion that what happened at the house was still affecting the fairness of what happened in the police station and, because it affected the fairness of what happened at the police station, that would in turn give rise to an argument as to the admissibility of the evidence under section 78 of the Police and Criminal Evidence Act 1984." In R v Thomas  RTR 292, Tudor-Evans J stated (at p. 294): "… in principle and upon authority, it is open to a defendant to argue that the procedures at the police station were so tainted by the previous conduct of the police at the roadside that there was a discretion to exclude the evidence of what happened at the police station." In this scenario the police officer was operating outside her powers, and she knew it before embarking of her course of action. The courts could, and most probably would, exclude any evidence so unscrupulously obtained;
Must an officer consult with the DP before deciding whether a medical condition exists and to go to blood or urine?
No - there is no requirement to consult
If someone volunteers to go on a training course after being done for drink drive, what period of their disqualification do they get let off?
Not less than 3 months or a quarter of their disqualification.
What happens if there are multiple people in the car but you cant prove who is driving and they are all drunk?
R V MELLORS
Each one can be charged with drink driving and alternatively with aiding and abetting the others to commit drink driving.
PC Bloggs arrests a suspect for drink driving at hospital after a positive breath test (unlawful). They go on to take bloods and he was charged. Is the bloods now inadmissible because of the unlawful arrest?
It was held that the fact that the arrest is prohibited does not prevent the blood and breach test procedures. As long as they are taken according to requirements, they remain admissible.
Man involved in fatal collision is asked how much he has drank. He replies 3 pints. Must the Constable caution before further questions?
Yes - R V BECKFORD.
After he said 3 pints, no further questions should be put to him without caution.
Jane drives intoxicated to her sisters house because she fears her sister is about to get assaulted. Whilst there she calls the police and drives away when police arrive. Can Jane rely on the defence of duress?
Was she forced to act as they did because of a genuine belief that death or serious injury would result if they had not acted in that manner?
Would a sober person of reasonable firmness have been forced into acting in the same way?
The court held that her response to the genuine fear of injury was not reasonable. She was not entitled to drive away after the police arrived.
If the prosecution try and argue that the intox is inaccurate, can they rely upon evidence of the roadside breath test?
Yes - it has been held that the court MAY consider evidence of the roadside breath test.
Can a breath test procedure be delayed for legal advice?
Unless exceptional circumstances.
R V CHALUPA 2009 - Where a solicitor is readily available a breath test could be delayed allowing an individual to take legal advice.
Drink drive suspect refuses to provide a sample stating that he is unable to. Suspect later, before court, finds out he has asthma and cannot blow for a period of time and uses this as a reasonable excuse. Can he rely on this?
No - a medical condition of which they were unaware cannot be uses as an excuse for failing to provide.
Officer believes that the machine is faulty so goes to blood and urine. The machine is tested later and is found to be in working order. What happens now?
The original samples on the working machine were still admissible.
When the court considers drink driving, can they disregard damage AND injury to the driver and his car?
The court may, in determining whether there was any likelihood of them driving whilst over the prescribed limit, disregard ANY damage to the vehicle or injury to the suspect.
Under what circumstances can a plain clothes officer make a REQUIREMENT for a breath test?
Same as uniform:
Road traffic offence
Damage only RTC. Can a plain clothes officer administer the breath test?
Yes does not have to be injury.
Needs reasonable belief in his/her involvement (driving/attempting/in charge) in the accident.
Plain clothes officer comes across an accident and sees a couple of people next to a damage car. He SUSPECTS that one lad is the driver. Can he do a breath test?
No - he must BELIEVE that he was the driver.
Otherwise he could require and administer the test.
If a driver runs over a cat, can a plain clothes officer require a breath test?
Yes it doesn’t have to be a reportable accident, just an accident in the general sense. As long as the officer BELIEVES he was driving and was involved in the accident, a plain clothes officer can administer the test.
Where can an EVIDENTIAL breath specimen be made?
At or near where a preliminary breath test has been administered
Can you take an EVIDENTIAL breath specimen at medical premises?
Only hospitals - other medical premises are not included.
If i see the words unfit in an exam what type of vehicle will it include?
If i get a question about being over prescribed limit, what type of vehicle must it be?
Motor vehicle not MPV
For powers of entry after an accident what are the belief steps?
1. Knife an accident has taken place
2. Believe the suspect was the driver
3. Suspect an injury to ant party (includes driver)
4. Suspects they have gone into that house
Enter to breathalyse not arrest.
If a driver says yes to taking blood but says right arm is painful, we can only take it from the left is that a fail to provide?
Yes - they don’t dictate to us
If it becomes impracticable for the police medical or health care practitioner to attend hospital, are there any other options available to Constable HENDRY in respect of obtaining the sample?
Constable HENDRY should make the request to a medical practitioner or a registered health care professional who is not in charge of GREGAN’s clinical care.
What is the legal limit for blood in relation to the drink/drive limit?
80 milligrammes of alcohol in 100 millilitres of blood.
If the reliability of a breath test machine is called into question, what must the court be satisfied of?
If the reliability of a breath test device is challenged by the defence, the court must be satisfied that the machine provided a reliable reading before it can convict.
If we do a breath test as evidence then go to blood, can the defence raise an issue with regards to the breath at court?
when a person has elected to provide a specimen of blood and there is no reliance on the breath specimen, there is no requirement for the prosecution to prove that the breath testing device was reliable and of an approved type
If we accidentally fail to ask the DP whether there are any medical reasons why they cant do a blood sample, is it inadmissible?
while a driver should be given the opportunity to state any medical reasons why blood should not be taken; a failure to do so "will" not prove fatal to an ensuing prosecution
What happens to a high risk offender scheme member before they can get a license?
offenders "will" be required to take a medical test before being allowed to regain their driver's licence at the end of their period of disqualification and they must effectively satisfy the licensing authority that they do not have a serious alcohol problem.
If you are a high risk offender scheme member, do you have to retake your test to get your license back?
Only take a medical test before regaining their license.
If someone has a panic attack when the request for a breath sample was made and was able to demonstrate that they had a history of similar attacks, is that sufficient for a medical reason in failing to provide?
the court could find that the accused had a medical reason for failing to supply a sample in these circumstances.
Could a reasonable excuse to failing to provide arise out of a mental inability?
Yes physical or mental inability to provide a specimen or a substantial risk to health.
If a defendant was to rely on a medical condition for a reasonable excuse for failing to provide, could they provide their own evidence of this at court or must it be doctors?
The evidence in support of the ‘reasonable excuse’ normally had to be medical but the defendant could provide it himself/herself
Is it lawful to request blood if i suspect that the machine is faulty?
No I must know that the machine is faulty.
What is the blood limit?
80 milligrams of alcohol in 100 ml of blood
What is the urine limit?
107 milligrams of alcohol in 100ml of urine
What is the breath limit?
35 microgrammes of alcohol in 100ml of breath.
What are the legal limit measurements?
Breath is MICRO (35)
Blood and urine are milligrammes (80 and 107)
I suspect someone of drink driving. They say that they had drunk alcohol 5 mins before and refuse to provide sample now. I ask him to provide a sample against policy and do not wait 20 minutes. He still refuses and is later charged. Does it get kicked out as I didn’t wait 20 mins?
No, COULTER failed to provide a sample and the reliability of a test was not compromised.
While it is possible for a failure to follow guidelines to affect the reliability of the specimen, the court held that it was not relevant in this case as the defendant had refused to supply a specimen of breath.
Can we detain people that have been arrested and bailed for drink drive until they are under the limit?
Yes until it appears to a constable that were the person to drive a mechanically propelled vehicle on a road, he or she would not be committing an offence.
THERE MUST BE A LIKELIHOOD OF THE PERSON DRIVING.
Does not have to have been charged or reported, just that they have been required to provide a sample.
If we want to detain someone post disposal (bail/charge), do we need to consult a doctor?
a constable "must" consult a medical practitioner on any question arising under this section whether a person’s ability to drive properly is or might be impaired through drugs. The constable must act on such advice. This is mandatory.