Drink Driving Police Procedure

Frequently asked Questions

Can a police officer just pull me over and randomly breathalyse me?

The police have the power to randomly stop vehicles, however they cannot perform random preliminary breath tests. They can only make a requirement that a person comply with a preliminary breath test if they reasonably suspect that:-

1. a person is driving, attempting to drive or is in charge of a motor vehicle on a road or other public place while under the influence of alcohol
2. a person has been driving, attempting to drive or has been in charge of a motor vehicle on a road or other public place while under the influence of alcohol
3. a person is or has been driving, attempting to drive or has been in charge of a motor vehicle on a road or other public place and has committed a moving road traffic offence

The police can also make a requirement that a person comply with a preliminary breath test if they reasonably believe that the person was driving, attempting to drive or in charge of a vehicle at the time of an accident.

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Can a police officer require a breath test in my own home?

As long as a police officer is not trespassing on a suspects property then any breath test requirement they make will be lawful.

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Can a police officer force entry in order to require a breath test?

Section 6E ss (1) of The Road Traffic Act 1988 [1] grants a police officer the power to enter any place (using reasonable force if necessary) in order to impose a requirement to provide a preliminary breath test IF AND ONLY IF:

1. There was a road traffic accident; and
2. The officer reasonably believed that a person had been driving, attempting to drive or in charge of a vehicle involved in the road traffic accident; and
3. The officer reasonably suspected that the road traffic accident resulted in the injury of any person(s) including the driver.

However, section 17 ss (1)(c)(iia) of The Police and Criminal Evidence Act 1984 [2] grants a police officer the power to enter any premises in order to arrest an offender under section 4 (driving, attempting to drive or in charge when under the influence of drink or drugs) or section 163 (failure to stop when required to do so by a constable in uniform) of The Road Traffic Act 1988 [1].

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Will I have to be interviewed by the police once arrested?

In many drink driving cases, formal recorded police interviews under caution may not be carried out and may not be necessary.

The purpose of recorded police interviews under caution are to gather evidence about a persons involvement or suspected involvement in a criminal offence. If there is already sufficient evidence against a person to provide a realistic prospect of conviction for a particular offence in a court of law then a formal recorded police interview may not be needed.

For example if a person was pulled over by police officers whilst driving and subsequently provided a specimen that proved the alcohol in their system exceeded the maximum prescribed legal limit then no further evidence is likely to be needed in order to secure a realistic prospect of conviction in a court of law.

The fact that they were witnessed by police officers driving and the fact that the evidential specimen they provided proved the alcohol in their system exceeded the maximum legal prescribed limit will usually be enough evidence to secure a conviction.

On the other hand, police officers investigating offences of being 'in charge' of a vehicle will interview suspects in order to establish whether or not there was any real risk of the suspect driving the vehicle whilst being over the maximum legal prescribed limit. In cases where the identity of the driver is unclear an interview would also be carried out.

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In cases of a juvenile, does an appropriate adult need to be present?

In cases where a juvenile has been arrested and detained at a police station for a suspected drink driving related offence there is no requirement for the police to wait for an appropriate adult to be present in order to commence the evidential breath testing procedure.

Evidential specimen procedures under the Road Traffic Act 1988 do not constitute an interview and therefore should not be unduly delayed until an appropriate adult is present.

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If I am unlawfully arrested can I still be charged & convicted of a drink driving offence?

If a person is unlawfully arrested then they can still be required to provide an evidential specimen for analysis and can still be subsequently charged with an offence.

However, in these situations a court of law does have the discretion under section 78 of The Police and Criminal Evidence Act 1984 [2] to refuse to admit any evidence obtained after an unlawful arrest was made. This does not necessarily mean they actually will refuse to admit any evidence obtained after an unlawful arrest and people can still be convicted.

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