Drug Driving - Police Procedure
Power to Stop Vehicles
Section 163 of the Road Traffic Act 1988 grants a police constable in uniform or a traffic officer, the power to stop a person driving a mechanically propelled vehicle on a road.
A road is defined by the Road Traffic Regulation Act 1984, Section 142 as meaning, in England and Wales, any length of highway or of any other road to which the public has access, and includes bridges over which a road passes.
The police can stop any vehicle on a road, at any time, without any suspicion that an offence has been committed.
The police have the power to stop mechanically propelled vehicles for any reason, at any time, there is case law (Stewart v Crowe 1999) that states that the power to stop vehicles should not be used whimsically or oppressively.
Once a driver has been stopped, the police can require that driver to produce their driving licence details in accordance with Section 164 of The Road Traffic Act 1988 and their name, address and insurance details in accordance with section 165 of the same act.
In many cases police officers formulate a reasonable suspicion that a driver may be committing a drug or alcohol related motoring offence after a routine traffic stop has been made.
While the police can stop any vehicle on a road, at any time, for any reason and may check a drivers licence, MOT and insurance details, they can only require the person to take preliminary roadside tests or arrest them without warrant under certain circumstances.
Police forces in England and Wales use standardised procedures and forms set out in the Manual of Guidance for Drink and Drug Driving (MGDD). These are used in relation to both preliminary tests and evidential procedures for drink and drug driving investigations.
Power to Administer Preliminary Tests
Section 6 of The Road Traffic Act 1988 states that a police constable can require a person to co-operate with any one or more preliminary tests if he is in uniform, and under certain circumstances.
Suspected Drugs or Alcohol
If a police officer has reasonable cause to suspect that a person is, or 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 their body, while unfit to drive through drugs, or under the influence of a drug, and that the person still has alcohol or a drug in their body or remains under the influence of a drug, they may require that person to co-operate with preliminary tests.
Road Traffic Offences
If a police officer has reasonable cause to suspect that a person 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, they may require that person to co-operate with preliminary tests. No separate suspicion of alcohol or drugs is required in these circumstances.
Road Traffic Accidents
If a police officer has reasonable cause to believe that a person was driving, attempting to drive, or in charge of a motor vehicle involved in a road traffic accident on a road or other public place, they may require that person to co-operate with preliminary tests. In cases involving road traffic accidents, no separate suspicion of alcohol or drug use is required.
Preliminary tests are often carried out by police officers before an arrest is made, although they are not a legal prerequisite. A police officer can arrest a person without warrant if they have reasonable cause to suspect that that person is or has been driving, attempting to drive or in charge of a vehicle while unfit through drink or drugs.
Type of Preliminary Tests
The police may require a person to co-operate with one or more preliminary tests. These tests may be carried out to obtain an indication of whether the person has alcohol in their system at a level likely to exceed the prescribed limit, whether they have a drug in their system, or whether their ability to drive is impaired due to drink or drugs.
- Preliminary Breath Test - Preliminary breath tests are carried out by police using a type-approved breath-testing device in order to obtain an indication as to whether a person has alcohol in their system at a level that is likely to exceed the legally prescribed limit.
- Preliminary Drug Test - Preliminary drug tests are carried out by police using a type-approved drug testing device. The device currently used by many police forces, the Securetec DrugWipe 3S, is designed to detect the presence of cannabis (THC) or cocaine in a person’s system.
- Preliminary Impairment Test - Preliminary impairment tests are used by police to obtain an indication as to whether a person’s ability to drive is impaired through drink or drugs. Impairment tests consist of a series of tasks set by a police officer, who will observe and assess the person’s ability to perform those tasks.
It is a criminal offence for a person to fail, without reasonable excuse, to co-operate with a preliminary test required under section 6(6) of the Road Traffic Act 1988.
If a person fails or refuses, without reasonable excuse, to co-operate with a preliminary test, the police can arrest that person without a warrant and require an evidential specimen of breath, blood, or urine for analysis, unless the person is a hospital patient, in which case specific hospital patient procedures apply.
Providing a Specimen for Analysis
The statutory provisions relating to the requirement to provide specimens for analysis are set out in section 7 of the Road Traffic Act 1988.
The MGDD form the police use as guidance when obtaining a specimen of either blood or urine for analysis at a police station is MGDD B - Drink/Drugs Procedure General (Police Station Only).
Police officers investigating if a person has committed a drug driving offence can request provision of a specimen of blood or urine for analysis, allowing a laboratory test to be carried out.
The decision as to whether the sample for analysis should be blood or urine will be the police officers to make. Where a requirement to provide a blood sample has been decided, the decision as to who shall take the blood sample will be decided by the police officer making the requirement.
For an investigation under section 5A of the Road Traffic Act 1988, an evidential blood specimen is required, as the offence relates to the concentration of a specified controlled drug in blood exceeding the specified limit.
The legal limits for specified drugs are set in micrograms per litre of blood. There are no legal limits set for specified drugs in urine.
A requirement to provide a specimen of blood or urine for analysis can only be made at a police station or at a hospital.
In cases where police are investigating drug driving offences, the requirement to provide a specimen of blood or urine cannot be made at a police station unless:
- 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
- the suspected offence is one under section 3A Causing death by careless driving when under influence of drink or drugs, 4 Driving, or being in charge, when under influence of drink or drugs or 5A Driving or being in charge of a motor vehicle with concentration of specified controlled drug above specified limit of the Road Traffic Act 1988 and the constable making the requirement has been advised by a medical practitioner or a registered health care professional that the condition of the person required to provide the specimen might be due to some drug;
Where a requirement to provide a blood sample has been decided, the decision as to who shall take the blood sample will be decided by the police officer making the requirement.
If a medical professional who is asked to take the specimen of blood is of the opinion that a blood specimen cannot or should not be taken, then there can be no requirement to provide a specimen of blood.
If a blood specimen cannot or should not be taken and an offence of driving while unfit through drugs is being investigated, a police officer can require a specimen of urine instead.
It is a criminal offence for a person to fail, without reasonable excuse, to provide a specimen for analysis in accordance with section 7(6) of the Road Traffic Act 1988.
Specimens of Blood Taken Without Consent
The statutory provisions relating to specimens of blood taken from persons incapable of consenting are set out in section 7A of the Road Traffic Act 1988.
A police officer may request a medical practitioner or healthcare professional to take a specimen of blood from a person without their consent where the statutory requirements for obtaining an evidential specimen for analysis would be satisfied if that person were capable of giving consent.
If a specimen of blood is taken under these circumstances, it may not be sent for laboratory analysis unless the person from whom it was taken has been informed that the specimen has been taken, has been required to give consent for it to be analysed, and has given that consent.
It is a criminal offence for a person to fail, without reasonable excuse, to give permission for a laboratory test to be carried out on a specimen of blood that was taken without consent section 7A(6) of the Road Traffic Act 1988.
Hospital Procedure
Section 9 of the Road Traffic Act 1988 sets out the procedure relating to hospital patients in connection with preliminary tests and the provision of specimens for analysis.
The MGDD form the police use as guidance when obtaining a specimen of either blood or urine for analysis at a police station is MGDD C - Drink/Drugs Hospital Procedure.
A requirement to co-operate with a preliminary test, to provide a specimen for analysis or may only be made if the medical practitioner in immediate charge of a hospital patient’s case has been notified of the proposal to make that requirement and does not object.
A medical practitioner may object on the grounds that any such requirement, warning, impairment test, or obtaining of a specimen would be prejudicial to the proper care and treatment of the patient.