Drink drivers to face speedier justice with new roadside breathalysers

New plans to bring drink drivers “to justice” quicker are in development with new roadside breathalyser technology that will enable officers to collect an “evidential sample” at the roadside as opposed to in the police station.

The Roadside Breath Test  vs The Evidential Sample

When a motorist  is under investigation for drink driving, one of the key elements of the offence is that the they must be over the legal drink drive  limit and there must strong and reliable evidence of that. Many motorists wonder why officers conduct a breath test at the roadside and then another one at the police station. Sometimes, this lack of understanding of the procedure can in itself cause difficulties as it can lead to  mistrust in the police. Why have they stopped me? Why are they breathalysing me? Am I being stitched up? …….I’m not going to cooperate.

It may seem an unlikely scenario when you read this but this is the reality of many arrests as motorists who genuinely have not committed an offence are still arrested and taken into custody before being subjected to a rather intimidating procedure. Suddenly the motorist is hearing phrases such as  “Your legal rights”, “failing to provide”, “…may harm your defence”, “will be prosecuted” For many, this is a daunting experience.

An officer must have “reasonable suspicion” that an offence has been committed to stop and require you to provide a sample of breath. Several types of circumstance may evoke that suspicion (something as ostensibly trivial as not having your light on or failing to  indicate for example) but the roadside breath test can help clarify the matter as opposed to relying upon speculation. The roadside device provides a reading quickly as to whether or not you may be over the limit but it is not as accurate or reliable as the devices in the police station (albeit those breathalysers have their own set of issues to contend with). If the breathalyser result indicates that a motorist is over the limit then the arrest is easily justified as lawful and the investigation can continue.  

Despite the widely-held belief amongst the public, the roadside breath test cannot in itself be used as evidence to prove that a motorist is over the prescribed limit. The officer must take a suspect into custody and go through the police station breath test procedure known as the MG DD/A. There are various ways this procedure can unfold with some scenarios resulting in blood or urine being taken as opposed to breath but we will not touch upon those here.

The Road Traffic Act that enshrines this offence in law states as follows:

“….in the course of an investigation into whether a person has committed an offence…..a constable may….require him to provide two specimens of breath for analysis by means of a device of type approved by the Secretary of State.”

The key phrase in this section is “by means of a device of type approved by the Secretary of State”. For the purposes of gathering evidence of this particular offence, the roadside devices are not “type approved” and the three breathalysers in operation today (the CAMIC Datamaster, the EX/IR Intoximeter and the Lion Intoxilyser) all underwent a rigorous type-approval process before being used across England & Wales.  

The importance of collecting accurate evidence cannot be overstated as if the State is to Prosecute an individual (a process that can have life-changing consequences), they must ensure that the conviction is safe and based on quality evidence and this is why a suspect provides an “evidential sample” (a sample that can be used as evidence) at the police station.


Other Protections Whilst in Custody

We must remember that the State is significantly more powerful than a lone individual and benefits from more wealth,  time and resources than the average person. When a Prosecution starts, the individual is immediately at a disadvantage as a result of this. They are often hauled out of their daily life and forced into a process of which they have very little control or means of escape. Under these circumstances it would be very easy for proceedings to be unfair and weighing massively in the State’s favour As a result of this, various legislation and regulations have been put into place to help the individual navigate the process and try to ensure quality of arms and overall fairness with arguably the most relevant being the Police and Criminal Evidence Act Codes of Practice (Pace Codes). The code provides several protections for suspects ranging from rights to legal advice, regular breaks and food, right to appropriate adults, regulations for identifying suspects and obtaining/preserving evidence to name but a few.

All of this helps to create a fair system to facilitate administering justice and avoiding miscarriages of the same.

The instant breath test currently in development will mean that the  driver will not need to be taken back to a police station to provide an evidential sample and thus theoretically negate the necessity of protections provided by the Codes of Practice.  

Whilst it may mean will mean those marginally over the drink drive limit will not have time to ‘sober up’ before the evidential test, how can we know that the proceedings remain fair when the very Codes designed to help ensure fairness are bypassed?

In addition to the roadside tests, the government is committing £350,000 for a competition which will see companies race to bring the new mobile technology to market. At present, there is no manufacturer able to bring a suitable device into circulation so the time scales for implementation are somewhat unclear.


Our View

The good intentions behind these changes is clear and they are trying to help streamline a procedure to not only reduce costs but free up police time.  Its effectiveness to administer justice and its compatibility with current legislation however is unclear.

We struggle to believe that the principles and intention that underpin the Codes of practice will be deemed completely unnecessary just because the location of the evidential test changes. It will be interesting to see what further developments are proposed to address this.

The entire police station procedure may need to be adapted for “roadside implementation” and what is most interesting could be what protections are still deemed to be crucial in 2018 and beyond. How will a suspect’s right to legal advice be upheld is just one example of a potential difficulty.

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