Police Procedure - Drugs & Driving

Police Power to Stop Vehicles

Section 163 of the Road Traffic Act 1988 [1] grants a police constable in uniform or a traffic officer the power to stop any mechanically propelled vehicle.

The power the police have to stop mechanically propelled vehicles can be used randomly and there is case law (Stewart v Crowe 1999) that states that the only limit on the power to stop vehicles is that the power to do so should not be used whimsically or oppressively.

The police may randomly stop a vehicle in order to ascertain whether or not the driver has alcohol or drugs in their system, however, while they can randomly stop a vehicle for this reason and any other reason, they cannot randomly require a driver to comply with any one or more preliminary tests.

A reasonable suspicion or belief, depending on the circumstances, must be formed before a requirement for a preliminary test can be made.

Preliminary Tests

A preliminary test is a test carried out by the police in order to obtain an indication as to whether or not a driver has alcohol or a drug in their body. The information provided here concentrates on the procedures carried out by police in regards to preliminary drug testing only. You can find information related to alcohol testing here.

When can a preliminary test be required?

If a police constable or a traffic officer reasonably suspects that a person:

IS driving, attempting to drive or or is in charge of a motor vehicle on a road or other public place, and has a drug in their body or is under the influence of a drug; OR
HAS BEEN driving, attempting to drive or in charge of a motor vehicle on a road or other public place while having a drug in their body or while unfit to drive because of a drug, and still has a drug in their body or is still under the influence of a drug; OR
IS OR HAS BEEN driving, attempting to drive or in charge of a motor vehicle on a road or other public place, and has committed a traffic offence while the vehicle was in motion.

If any of the above apply a police constable may only require a person to submit to a preliminary test if he is in uniform.

If an accident occurs owing to the presence of a motor vehicle on a road or other public place, and a police constable reasonably believes that a person:

was driving, attempting to drive or in charge of a vehicle at the time of the accident.

If an accident occurs the police can require a preliminary test off anyone they reasonably believe was driving, attempting to drive or in charge of the vehicle. No other suspicion is needed and their is no requirement that a police officer must be in uniform.

What type of preliminary test can be required?

Section 6(1) of the Road Traffic Act 1988 [1] states:

[...] a [police] 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

There are currently three types of preliminary tests that may be required, these are:

a preliminary breath test (alcohol detection)
a preliminary drug test (drug detection)
a preliminary impairment test (drug and/or alcohol detection)

Preliminary Drug Test

A preliminary drug test is designed to give the police an indication as to whether or not a person has a specified controlled drug in their body and if so, whether or not the level of drug in their body is likely to exceed the maximum legal specified limit for that drug.

Section 6C of the Road Traffic Act 1988 [1] states:

6B Preliminary drug test

A preliminary drug test is a procedure by which a specimen of sweat or saliva is--

obtained, and
used for the purpose of obtaining, by means of a device of a type approved by the Secretary of State, and indication whether the person to whom the test is administered has a drug in his body and if so--
1. whether it is a specified controlled drug;
2. if it is, whether the proportion of it in the person's blood or urine is likely to exceed the specified limit for that drug.
A preliminary drug test may be administered--
1. at or near the place where the requirement to co-operate with the test is imposed, or
2. if the constable who imposes the requirement thinks it expedient, at a police station specified by him.
up to three preliminary drug tests may be administered.

There are currently only two preliminary (road side) drug testing devices which have received type approval by the Secretary of State (Home Office), these are:

The Draeger DrugTest 5000, this device is designed to detect delta-9-tetrahydrocannabinol (THC, the main active ingredient of cannabis) only; and
The Securetec DrugWipe 3S S303G, this device is designed to detect delta-9-tetrahydrocannabinol (THC, the main active ingredient of cannabis) and cocaine.

Preliminary Impairment Test

A preliminary impairment test may be a test of any type designed to indicate whether a person is unfit to drive, and if they are deemed unfit, whether or not their unfitness to drive is likely to be caused by either alcohol or drugs.

Section 6B of the Road Traffic Act 1988 [1] states:

6B Preliminary impairment test

A preliminary impairment test is a procedure whereby the constable administering the test--
1. observes the person to whom the test is administered in his performance of tasks specified by the constable, and
2. makes such other observations of the person's physical state as the constable thinks expedient.

[...]

A preliminary impairment test may be administered--
1. at or near the place where the requirement to co-operate with the test is imposed, or
2. if the constable who imposes the requirement thinks it expedient, at a police station specified by him.

[...]

A constable may administer a preliminary impairment test only if he is approved for that purpose by the chief officer of the police force to which he belongs.

A person commits a criminal offence if without reasonable excuse, they fail to co-operate with a preliminary test when required to do so and can be arrested without warrant.

Power of Arrest

When can the police arrest me?

Section 6D of the Road Traffic Act 1988 [1] states:

6D Arrest

A constable may arrest a person without warrant if as a result of a [...] preliminary drug test the constable reasonable suspects that--
1. [...]
2. the person has a specified controlled drug in his body and the proportion of it in the person's blood or urine exceeds the specified limit for that drug.
A constable may arrest a person without warrant if--
1. the person fails to co-operate with a preliminary test in pursuance of a requirement [to submit to a preliminary test], and
2. the constable reasonably suspects that the person has alcohol or a drug in his body or is under the influence of a drug.

While there is no mention in section 6D of the power to arrest a person because of the result of a preliminary impairment test, the police do actually have the power to arrest any person without warrant they suspect to be committing an offence, this power is conferred to them under the Police and Criminal Evidence Act 1984 (PACE) [2].

Section 24(2) of the Police and Criminal Evidence Act 1984 [2] states:

24 Arrest without warrant: constables

If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without warrant anyone whom he has reasonable grounds to suspect of being guilty of it.

Evidential Specimens for Analysis

When can I be required to provide a specimen for analysis?

Unlike preliminary tests which are only used as an indication as to whether or not a person has committed an offence, evidential specimens of breath, blood or urine are retained and used as evidence in any subsequent court proceedings. In drug driving related cases it will be specimens or urine or blood that will provide evidence of any drug(s) in a person's body.

Section 7 of the Road Traffic Act 1988 [2] states:

7 Provisions of specimens for analysis

[...]

A requirement under this section to provide a specimen of blood or urine can only be made at a police station or at a hospital; and it cannot be made at a police station unless--
- [...]
1. (c) as a result of the administration of a preliminary drug test, the constable making the requirement has reasonable cause to believe that the person required to provide a specimen of blood or urine has a drug in his body, or
2. the suspected offence is [one of either: a) Causing death by careless driving when under the influence of drink or drugs, b) Driving, or being in charge, when under the influence of drugs or c) Driving or being in charge of a motor vehicle with concentration of specified controlled drug above specified limit] and the constable making the requirement has been advised by a medical practitioner that the condition of the person required to provide the specimen might be due to some drug.

It is a criminal offence to fail to provide an evidential specimen for analysis, without reasonable excuse, when required to do so.

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Reference:

[1] Road Traffic Act 1988

[2] Police and Criminal Evidence Act 1984