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Drink & Drug Driving – Christmas Campaign
  • Dec 1, 2021
  • Latest Journal

As we approach Christmas and the national drink & drug driving policing initiative periods I review the controversial issue of drink/drug driver prosecutions and look at two aspects:
•  Can innocent people end up being convicted of a drink/drug drive offence?
•  Can the guilty avoid conviction?

Upon initial glance many might wonder how my expertise of police custody procedures and ‘safer custody’ apply to the drink/drug drive procedure.

Drink/Drug drive procedures are part of the custody portfolio due to the station procedures aspects. All pre-arrest contact is part of the 'safer custody' portfolio. The legislation under the Road Traffic Act is under the roads policing portfolio, but overlaps with the custody portfolio.

When I was operational all station and hospital procedures were conducted by a sergeant, so every constable request was conducted by the sergeant. This meant when I was on duty I handled all station and hospital procedures for my policing division. There was hardly a day without a station procedure being conducted.

During my police service I also trained as an intoxilyser trainer, completing the train the trainer course at National Police Training, Harrogate. I trained other custody sergeants how to use the intoxyliser and conduct station evidential procedures, including all the MGDD forms. Following the adoption of 'safer custody' by 2006, the sergeant was removed from the process to keep them impartial and focused upon the care and detention of the detainee.

I previously taught constables the roadside procedures and by 2006 I was teaching custody staff (sergeants and detention officers) the safer custody aspects of dealing with drink & drug driver cases, and about the supervision of constables at the station conducting such procedures.

So how could an innocent person face a conviction?
It is essential that procedures are conducted to make any custody and prosecution safe. Not all members of the public have previous involvement with the police and criminal justice system so do not understand how this could happen. Let’s have a look at a hypothetical scenario.

We are within a Christmas drink/drug drive campaign and officers are encouraged to utilise their powers to request a preliminary breath test whenever possible. A motorist is driving home from work along a road within the 60 miles per hour speed limit. They are less than a minute away from home when all of a sudden a learner driver ‘bunny-hops’ out of a junction into the side of their vehicle. They loose control of their vehicle, mount the kerb and hit a wall. During this process they have struck the side window with their head and the air bag has deployed. They have sustained a head wound and blood is dripping down their face. They are unable to hear due to the airbag deployment affecting their hearing.

Their stress hormones – adrenaline – activate with a sudden rush of fight/flight surging through their body. They are in complete panic. Their mind has gone into complete emotional response. They want to get home to safety. They exit the vehicle and set off attempting to run home but due to the injuries and loss of balance they look to on-lookers like they are drunk. They also vomit with stress response as they try to run. As they arrive home their partner calls an ambulance, unable to get any reasoning from them as to what has occurred.

In the meantime, police attend the road traffic collision and through witness accounts have reasonable grounds to believe the driver who has made off, was drunk. They were staggering away and vomited. The number plate produces the address.

As police arrive at the house they see the ambulance leaving with the driver within. Ambulance crew believe the head wound is too deep and there are clear signs of concussion and/or other head injury. Ambulance staff can smell no alcohol but note the driver to be uncooperative and unsteady on their feet.
The police officers waiting at A&E are keen to obtain a breath sample to establish if they have a drink/drug driver, and are persisting with A&E staff to let them speak to the driver.

The driver is now in a cubicle being attended to by staff. They are in the process of receiving stitches to the head and are awaiting being sent for a CT scan. The police officer has been given permission by the on-duty doctor to ask the driver about the collision.

The officer produces their official paperwork and begins to ask for samples for analysis. The driver is still receiving treatment and is still dealing with some loss of hearing and severe head pain. Having never been involved with police officers before they say “I’ll come to the station when I’m finished here and sort it all out”. The officer repeats their requests and follows through with some official wording which the driver does not properly understand. This was the formal warning concerning fail to provide and prosecution. The driver is irritated by the officer and sharply repeats their earlier response that they will attend the station when clear.

Several hours later they are released from hospital and attend the police station to be informed the procedure is completed and they were reported for the offence of failure to provide.

The driver now looks to receive a conviction for which many may assume means they were drink/drug driving. This could have serious ramifications for their employment.

What if they were over the limit?
Looking at can the guilty avoid conviction. What if the driver had been drinking before leaving work? What if they were over the prescribed limit? Instead of receiving a conviction for driving whilst over the prescribed limit they are receiving a lesser offence for failure to provide.

Overlapping Safer Custody
A significant aspect for ‘safer custody’ is that the process is compliant with best practice guidance so that not only does the person not die during the process but the process does not then lead to the exclusion of evidence against a person, or the case to collapse. A phrase I often use if that procedures are there for a reason.

‘Fitness’ to proceed with a person is a key aspect to consider. Are they fit to proceed or should the officers revert to unfit/lacking capacity?

Is this period of being unfit short term or long term?
For every ‘offence’ there are points to prove for the prosecution team. And for each point to prove the ‘defence’ can look for a statutory defence for their client to use.
For example, with the above scenario we might need to consider issues connected to:
•    hospital patients,
•    medical reasons for failure to provide;  
•    incapacity
•    doctor consent
in addition to others.

Head Injuries
It is possible for a head injury to appear as intoxication. Traumatic brain injury may be defined as a traumatically induced structural injury and/or physiological disruption of brain function as a result of an external force. It may be indicated by new onset or worsening of at least one of the following clinical signs, immediately following the event:
 • any period of loss of or a decreased level of consciousness
• any loss of memory for events immediately before or after the injury
• any alteration in mental state at the time of the injury (confusion, disorientation, slowed thinking, etc.)
• neurological deficits (weakness, loss of balance, change in vision, praxis, paresis/plegia, sensory loss, aphasia, etc.) that may or may not be a transient intracranial lesion.
A blow to the head can result in bruising or bleeding inside the skull or inside the brain. Not all head injuries are visible and complications may occur at any time after the event. Staff must be aware of the risks associated with head injuries, particularly when dealing with persons who may have been involved in a fight or a road traffic collision. Staff should also be aware that symptoms of a serious injury to the head can display as the common signs of drunkenness (eg, slurred speech, drowsiness and vomiting). A head injury may result in a rapid deterioration in the health of the person.

The National Institute for Health and Care Excellence (NICE) guidance explains: “High-energy head injury. For example, pedestrian struck by motor vehicle, occupant ejected from motor vehicle, fall from a height of greater than 1 metre or more than 5 stairs, diving accident, high-speed motor vehicle collision, rollover motor accident, accident involving motorised recreational vehicles, bicycle collision, or any other potentially high-energy mechanism.”

Guidance for doctors from the British Medical Association and the Faculty of Forensic & Legal Medicine 2020 (FFLM). This document contains the following statements:
•    The Police Reform Act 2002 and The Criminal Justice (Northern Ireland) Order 2005 permit the taking of blood from incapacitated drivers.
•    Legally, it is the responsibility of the police constable to establish whether the person has or lacks capacity. Nevertheless, before taking a sample (Health Care Professionals) HCPs should satisfy themselves that the individual lacks the capacity to consent and therefore falls within the remit of the legislation.
•    The relevant legal test of capacity is that the driver is: ‘…conscious of what he or she is doing and has heard and fully understood the request for his consent
•    HCPs will want to consider whether the person: • understands what the request involves, and why the specimen is being sought • understands any risks associated with the specimen being taken • understands what will be the consequences of refusing to give consent • can retain the information for long enough to make an effective decision • can weigh the information in the balance; and • can make a free choice.
•    Decisions about a person’s capacity may have particular implications where the person refuses to agree to a specimen being taken, since refusal without ‘reasonable excuse’ will lead to a charge of ‘failure to provide a specimen’. Lack of mental capacity might be a ‘reasonable excuse’ and it is therefore important that doctors document their decisions about mental capacity carefully

What happens if a blood sample is obtained from a person under hospital procedures for incapacitated drivers?
A person who is incapable of consenting, may have a sample of blood taken from them without their consent. The obtained sample is then retained until the person is capable of either providing consent for it to be sent for analysis, or refusing.

If they consent then an analysis can be obtained and establish a drink/drugs level in the blood.
If they do not consent then they can be proceeded with for failure to provide.  

The above scenario is purely a training and discussion scenario, and is not legal advice and neither does it cover all of the issues.

The scenario raises the issue that if a driver is considered incapacitated through a head injury that the obtaining of the blood sample could achieve a safer process, and convict those that have been driving whilst over the limit.

About the Author
Ms. Joanne Caffrey
Expert Witness in Safer Custody (Prison or Police), use of force and challenging behaviour
Area of work: UK and Ireland

Safer Custody is a UK holistic strategy for providing a common framework of understanding and governance concerning any detained person within the Criminal Justice System, regardless of which agent is currently caring for the person. From point of initial encounter, stop and search/arrest, through police, court and prison custody, and all associated private contractors providing transport services between the agencies.

The secure custody sector includes:
· the prisons and young offender institutions (YOIs),
· police custody,
· secure transport services,
· court custody,
· immigration,
· child secure accommodation,
· mental health,
· customs custody,
· military detention

I achieved national awards for my custody training programmes and associated work in this area which included the 2012 British Association of Women in Policing, Excellence in Performance, Award and 2018 Federation of Forensic & Expert Witness Award.