Operational partnerships - Drink, drugs and driving SOP (R01b)

R01b Drink, Drugs and Driving

1. Summary of Changes

1.1. The following changes have been made to this Standard Operating Procedure (SOP)in October 2023

• paragraph 3.8.3 updated.

2. What this Procedure is About

2.1. All processes should be video recorded using BWV where available, even if this supplements Custody CCTV.

2.2. This Standard Operating Procedure (SOP) provides a summary of relevant Road Traffic Act legislation and police powers in relation to impaired driving and driving whilst over the legal drink and drug-drive limits, and how Kent Police will expect its officers to make use of those powers.

2.3. Sections 4 to 7 of the Road Traffic Act 1988 deal specifically with powers and procedures in relation to:

• Section 4 - Offence of being unfit through drink or drugs
• Section 5 - Driving whilst over the prescribed limit
• Section 6 - Preliminary road side tests and powers of entry
• Section 7 - Station and hospital procedures.

2.4. Specifically, Section 6(5) provides powers to require the driver of a vehicle involved in a collision to undertake Preliminary Screening Tests for drugs and alcohol, and a Preliminary Impairment Test.

Compliance with this procedure and any governing policy is mandatory.

3. Collision Procedures

3.1. All drivers involved in road traffic collisions must be breath tested unless the nature of their injuries preclude such a course of action. There will also be occasions where, due to the time lapse between collision and reporting, a breath test would cease to be of any value. If in doubt, a supervisor should be contacted for advice. The test may be carried out at or near the place where the requirement was made, or at a police station specified by the Constable. The requirement for a preliminary breath test should be made as soon as reasonably practicable.

3.2. Consideration must be given to requiring drivers involved in collisions to undertake an impairment test in the event of a negative breath test.

3.3. Police also have powers to require drivers involved in collisions to undertake a drug screening test. This should be done taking all the circumstances into account, including the profile of the driver (e.g. age) and the demeanour of the driver (e.g. where drugs are considered possibly present). There is no general requirement to carry out a roadside drug screen at the scene of every collision attended by Kent Police.

3.3.1. Where the Serious Collision Investigation Unit (SCIU) has been called to attend a collision scene, if possible the Lead Investigating Officer must be consulted before alcohol and/or impairment investigations are commenced.

3.4 Where SCIU attend a collision, it is expected that every surviving driver will be made subject of investigations under Section 4, Section 5 and Section 5a RTA 1998. The Lead Investigating Officer (LIO) may choose to vary this, but their advice must be sought on every occasion. All surviving drivers taken to hospital will be required to provide a specimen of blood or urine, for investigations into offences of excess alcohol or drugs, or driving whilst impaired through either alcohol or drugs.

3.4.1. In all other cases of serious injury collisions, consideration should be given to this process. It must be remembered that it can be as important to show the absence of drugs and alcohol, as to prove their presence.

3.5. In relation to a Preliminary Breath Test there is no statutory requirement to ask when a driver took his/her last drink or smoked; a failure to ask will not invalidate the test (DPP v Kay 1998). However, it is recommended as good practice to ask whether they have drunk anything within the last twenty minutes or smoked within the last five minutes.

3.5.1. In relation to a Preliminary Drug Test, you must make sure that the driver has not eaten or drunk anything for the previous 10 minutes.

3.6. An arrested person will be taken to a police station for the evidential breath testing procedure to be conducted, or for a specimen of blood to be taken in accordance with forms MGDD/A or MGDD/B.

3.6.1. Where a specimen of blood will likely be required to be taken by a Forensic Healthcare Professional (FHP), the arresting officer should ascertain the availability of the FHP covering the area for which the person has been detained. Officers will:

1) Contact the nearest custody suite, and determine they are able to accommodate the detainee and ensure the custody officer is aware.

2) The custody or arresting officer will then contact the FHP for that area on the mobile number(s) listed on the SharePoint pages, and confirm their availability. In the event that FHP is unavailable, it is for that FHP to determine the location of the nearest FHP who is available. The expectation is that the FHP will travel to the station where the DP is taken and only in exceptional circumstances the Detainee may need to be conveyed to an alternative station.
This process ensures minimal delay in evidence gathering.

3.7. Sections 4 to 7 of the Road Traffic Act 1988 deal specifically with powers and procedures in relation to:
Section 4 – Offence of being unfit through drink or drugs
Section 5 – Driving whilst over the prescribed limit
Section 6 – Preliminary road side tests and powers of entry
Section 7 – Station and hospital procedures
The powers of entry must always be exercised with caution. A supervisor should be informed prior to forcing such an entry under Sect 6E RTA or Sect 17 PACE.

3.8. Station procedure

3.8.1. In the event of a suspect being arrested for the offence(s) of Impaired driving (sect 4 RTA) and / or Driving with excess drugs (Sect 5A RTA), the suspect will be conveyed to nearest available custody suite where a Forensic Health Care Practitioner is available to take an evidential sample of blood. Officers will:

1) Contact the nearest custody suite, and determine they are able to accommodate the detainee and ensure the custody officer is aware.

2) The custody or arresting officer will then contact the FHP for that area on the mobile number(s) listed on the SharePoint pages and confirm their availability. In the event that FHP is unavailable, it is for that FHP to determine the location of the nearest FHP who is available. The expectation is that the FHP will travel to the station where the DP is taken and only in exceptional circumstances the Detainee may need to be conveyed to an alternative station.

This means the detainee may not necessarily be conveyed to the nearest geographical location to where the person has been stopped / arrested, but the obtaining of an evidential sample of blood is extremely time sensitive, and should therefore be obtained at the earliest opportunity.
Unless it is totally impractical to do so, that detainee will be fast tracked through custody with an absolute minimum of delay. Custody officers are expected to support the fast track process unless there is a justified reason for not doing so.

This process ensures minimal delay in evidence gathering.

3.8.2. In all cases at a police station equipped with an Intoximeter Electro Chemical Infra Red (EC/IR) the subject will be required to provide two specimens of breath for analysis unless medical reasons prevent this. In such circumstances the officer will then require a specimen of blood or urine (Section 7 RTA 1988). A requirement to provide blood (or urine) can also be made where an Intoximeter machine is not available, it fails its calibration check, or where there is no authorised operator available.

3.8.3. In the circumstances where a specimen of blood is required, a Forensic Healthcare Professional (FHP) or Forensic Medical Examiner (FME) may obtain the sample. Urine samples are obtained by the officer. Samples of blood or urine shall be divided and part of the specimen offered to the suspect. In the event that the suspect declines their part of the evidential specimen, this should be placed in the same sealed evidence bag for submission to the lab for analysis / storage. They should still be entered into the property system to allow for audit and continuity. There is no longer any requirement to separately book the 'B' sample into property and store long term, in cases where the suspect declines. Preferably the sample being sent to the laboratory should be refrigerated. It is vital continuity is documented. Samples which require long term retention such as those obtained from unconscious patients, should be entered into the Electronic Property Management System and placed in a freezer. When the required consent is obtained, procedure for delivery to the laboratory should be followed as above. Submission of all specimens is requested via completion of an MGDDE on Mobile first.

3.8.4. Personal radios and mobile phones must be switched off to prevent any suggestion of interference with the Intoximeter room equipment. To ensure best evidence capture, the procedure should be video recorded. Where interpreters are used using the language line service the phone must be used on ‘speaker phone’ so that the conversation in both languages is recorded.

3.8.5. Retain any recordings as per Criminal Investigations and Procedure Act 1996 (CPIA) i.e. unused material.

3.8.6. If during the police station procedure the subject requires legal advice, there is no need for the custody officer to stop the procedure to await the arrival of the duty solicitor. The case of Kennedy vs. Crown Prosecution Service (CPS) [2002] may be quoted by attending solicitors, but this was held not to be a suitable case to decide whether Article 6 of the European Convention on Human Rights applied. This case states that where the matter under investigation was a suspected offence contrary to Section 5 of the Road Traffic 1988, the public interest required that the obtaining of breath specimens could not be delayed to a significant extent to allow a suspect to take legal advice.

3.8.7. However, Kennedy LJ, also stated in his judgement that “.... if there happens to be a solicitor in the charge office whom the suspect states that he wishes to consult for a couple of minutes before deciding whether or not to provide specimens of breath, he must be allowed to do so. Similarly, if the suspect asks at that stage to speak on the telephone for a couple of minutes to his own solicitor or the duty solicitor, and the solicitor is immediately available.” Custody Sergeants must bear this in mind.

3.8.8. To counter a 'long purge time' defence, consideration should be given to carrying out an 'F2' screening test using the Intoximeter EC/IR, before release of a driver charged with EBA. This provides a timed reading; the printout must be retained with the case papers and referred to in the Officer in the Case (OIC) statement, and can be utilised by prosecution experts to negate this defence.
The case of Stephen John O'SULLIVAN v DPP (2005) ruled that it is not unfair for a police officer to carry out an 'F2' quick check before release of the driver; further, the officer did not have to warn the subject that the result of the check may be used as part of the case against him. In this case, the result was only retained and used when the subject pleaded Not Guilty.

3.9. Hospital procedure following collisions

3.9.1. Screening breath and drug tests and the provision of blood or urine specimens for laboratory tests may in certain circumstances be carried out at hospitals. The doctor in charge of the patient must be notified of the intention to take evidential samples, and given an opportunity to object, but they may do so only if the process would interfere with the clinical care of the patient.

3.9.2. Although screening breath and drug tests are the quickest procedures to carry out, they will only screen for the presence of alcohol, cocaine and cannabis. To ensure both alcohol and the full range of drugs are checked for; a blood sample is the recommended option. The MGDD/C must be endorsed accordingly, and the subject informed that the investigation will be for alcohol and drugs.

3.9.3. Where specimens of blood or urine are to be provided by a person in hospital they will be taken by a Forensic Healthcare Professional (FHP) or Forensic Medical Examiner (FME), in accordance with the Road Traffic Act 1988. Alternatively, hospital doctors can take the sample provided they are not involved in the clinical care of the patient, and it is not reasonably practicable for the FHP/FME to do so.

3.9.4. Procedures for requiring specimens of breath, blood or urine from hospital patients are contained within, and must be documented using, form MGDD/C. Blood specimens taken by medical staff as part of the patient's treatment must not be seized by police for this purpose; they are 'excluded material' under PACE and cannot be used in evidence.

3.9.5. Powers exist under Section 7A Road Traffic Act 1988 to take samples following a Road Traffic Collision, from an unconscious patient or a patient incapable of giving valid consent due to medical reasons. Procedures for doing so are contained within, and must be documented using, Form MGDD/C.

3.10. FHP attendance

3.10.1. The services of a Kent Forensic Healthcare Professional (FHP) must be sought to obtain specimens of blood from hospital patients.

3.10.2. Officers requiring the attendance of an FHP at a Kent hospital must contact the nearest custody area to arrange that attendance. It is for that FHP to find an alternative, should they be unavailable to assist.

3.10.3. If casualties are conveyed to London Hospitals following Road Traffic Collisions (RTC's) in Kent, a Kent FHP will attend to obtain evidential blood samples. The attending officer must make contact with the FHP covering the area to the incident to arrange their attendance (contact numbers for the FHPs are on the SharePoint page).
It is for that FHP to find an alternative FHP, should they be unavailable to assist. An appointed officer will then attend the relevant custody suite, collect the FHP and transport them to the hospital. Officers should be aware that blood toxicology is extremely time sensitive and should therefore be treated as urgent. This may involve the use of UDD to convey the FHP to hospital, but will be at the respective police driver’s discretion in the circumstances. The police officer must then return the FHP post-procedure. This process must be recorded on the CAD.

3.10.4. Evidential blood samples can only be taken by either the relevant FHP (as above) or, if in agreement, a hospital doctor who is not involved in the care of the suspect whilst in hospital. FMEs are no longer contracted for hospital procedures.

3.10.5 Between the hours of 0500-0730 (or other times when no FHP is on duty), officers should refer to the 'FME Callout' pages on the FCR PAGES for FHP attendance.

3.11. Impairment through alcohol

3.11.1. Persons arrested for driving whilst unfit through alcohol will be dealt with in accordance with the procedure set out on the respective MGDD forms. Officers must remember the combination of the three factors (manner of driving, manner of accused, obtaining of a sample) and carry out a FIT procedure. A prosecution can be brought with two of these three factors, but the presence of alcohol must be proved, even if the subject is under the legal drink-drive limit.
If a driver is impaired through alcohol alone – there is no requirement to obtain evidential samples of breath / blood / urine in order to prove your case – if they can not / will not provide. Officers are recognised by the courts as being experts in drunkenness.
Providing there is evidence of their ability to drive being impaired through alcohol – there is a case. This can be manner of driving / demeanour / FIT results.
Fail to provide evidential sample ? Charge Impaired Driving AND Fail to Provide.

3.12. Impairment through drugs

3.12.1 The force has specially trained Drug Recognition Officers who can administer Preliminary Impairment Tests (PIT) to persons suspected of being unfit to drive through drink or drugs. The PIT procedure (often referred to as FIT in Kent) can be used equally well for drink or drugs.

3.12.2. An evidential breath test must always be carried out to investigate the possibility of the presence of alcohol as the cause of impairment.

3.12.3. An FHP/FME must assess any driver detained as part of the 'Impairment' procedure; he/she must give an opinion as to whether a condition might exist which might be due to some drug. They are not expected to provide opinion on the defendant being impaired, but will carry out tests to assist in their determinations.

3.12.4. In those circumstances where a specimen of blood is required at a police station for the purposes of Impairment Testing, either an FHP or FME will obtain the sample.

3.13. Drive with excess drugs

3.13.1. Section 5A Road Traffic Act provides for an offence of driving with excess drugs. Powers to require a driver to undergo a preliminary drug screening test are the same as those for a preliminary breath test.

3.13.2. Only those officers who are authorised Drug Recognition Officers (DRO) may carry out a Preliminary Drug Test (see section 3.18 for authorities).

3.13.3. A DRO must carry out a Preliminary Impairment Test (PIT) as well as a Preliminary Drug Test. This ensures that, should any subsequent blood sample return a reading under the relevant levels, any evidence of impairment has been captured. Where a detained person is taken into custody, the FHP will not commence their examination (unless a medical emergency) unless/until a PIT has been carried out by the DRO. The FHP may observe the PIT in lieu of their own examination.

3.13.4. Section 5A provides legal limits for 17 drug types, both illegal and those available on prescription. The drug screening devices only provide indications of cannabis and cocaine, and therefore failure to carry out a P.I.T may cause evidence to be lost.

3.13.5. Section 5A provides drivers with defences for driving with levels of prescription drugs above the prescribed limit. For further assistance or information, refer to either the PNLD or SCIU pages on SharePoint.

3.13.6. Where the drug screener indicates that a specified drug is detected in the subject's saliva, they must be arrested and taken into custody. A sample of blood must be taken by an FHP following their examination. It must be booked into Special Property and an MGDDE submitted.

3.14. Hip flask defence

3.14.1. It is imperative that a person suspected of an offence of drunkenness in connection with a motor vehicle should be given no opportunity of taking alcohol between the time of being stopped and the time of providing a specimen, and any indication that a “hip flask defence” may be used must be fully investigated. Where a person in custody or hospital claims a hip flask defence then form MGDD/D (Alcohol Technical Defence Form) will be completed in all cases, and the suspect will be interviewed. For further advice and information, view the SCIU SharePoint pages.

3.15. Transport and Works Act 1992 (Railways and Trams)

3.15.1. This Act provides criminal law sanctions to control and penalise the use of drugs or alcohol by staff operating railways, tramways or other guided transport systems. Section 27 of the Act has offences applying to drivers, guards, conductors, maintenance staff, signalmen or any other person working on a transport system, used or intended to be used for the carriage of the public to which the Act applies, who can control or effect the movement of a vehicle operating on a transport system. This includes private railway systems. The offences and alcohol limits are the same as those in Road Traffic Legislation.

3.15.2. The Act provides officers with powers to require persons to provide specimens of breath, blood and urine where an officer has reasonable cause to suspect an offence has been committed or following an incident or accident. The power is the same as that contained in the Road Traffic Act 1988. Although suspected offences committed on British Rail property will normally be dealt with by British Transport Police (BTP) officers, the powers are extended to all officers.

3.15.3. Prosecution cannot be undertaken without the approval of the Secretary of State or the Director of Public Prosecutions.

3.16. Railways and Transport Safety Act 2003 (Aviation and Shipping)

3.16.1. This legislation contains provisions for testing aviation and shipping staff for drink or drugs. Section 92 creates offences for aviation staff if they are found to be under the influence of drink or drugs. Note there is a very low limit (Section 93, Breath - 9 micrograms in 100 millilitres, or Blood – 20 micrograms).

3.17. Alcometer SL500B Devices

3.17.1. The Alcometer SL500B is an electronic screening device, and care should be taken to follow the manufacturer’s instructions relating to use.

3.17.2. Divisional Commanders must ensure that supervisory checks are in place to ensure that all devices are accounted for.

3.17.3. The calibration of all instruments will be checked by an officer who has received the necessary training. The SL500B must be checked monthly, the memory downloaded and the device re-calibrated as required. Supervisors should make appropriate arrangements to ensure that these checks are carried out.

3.17.4. The Alcometer SL500B has a memory function enabling it to record the results of individual breath tests. The memory may have potential relevance in a particular case and in any event constitutes an item of secondary disclosure. Software is available from the manufacturer to download and save the memory onto a computer. Memory Records from all SL500B devices must be downloaded monthly, and stored for at least 12 months.

3.17.5. Kent Police Districts will each have an officer nominated as a point of contact, responsible for; ordering Nalco cylinders, the return of SL500B devices for repair, and ensuring the download database is maintained.

3.18. Intoximeter Inc EC/IR

3.18.1. Nominated Custody Sergeants will be responsible for:

• The maintenance of Intoximeter equipment
• Direct liaison with the manufacturers to report defects
• Where necessary, arranging the return of defective equipment by carrier for factory repair
• The memory from an evidential breath test instrument could have relevance in a particular case and in any event, constitutes an item of secondary disclosure. Memory Records will be downloaded at least monthly and retained for 12 months.

3.18.2. A record of each breath test conducted must be entered on the Metrological Log in accordance with the manufacturer’s instructions.

3.18.3. All servicing / maintenance records should be kept in the file with Metrological log. The service engineer should endorse the metrological log with the actions they have done i.e. serviced it, replaced the gas, cleared the memory etc. Any tests they do should be entered in the log so the test numbers are sequential.

3.18.4. This device is no longer Type Approved for 'Shipping' investigations. Officers investigating shipping offences must proceed to require blood or urine, as 'a reliable breath testing device is not available for use'.

3.19. D.tec DrugWipe 3S Screening Device

3.19.1. This device is authorised for use by Kent Police Officers to undertake Preliminary Drug Screening Tests under the Road Traffic Act.

3.19.2. All Divisions will provide a nominated officer responsible for the ordering and issuing of new, and disposal of expired, devices.

3.19.3. The only officers permitted to use them are Officers who have been trained and authorised in the use of this device.

3.19.4. Officers must check the packaging at the start of their shift, and in all cases before carrying out a test, to ensure that the device is within the Expiry Date as shown on the package.

3.19.5. Devices outside the Expiry Date must not be used, and must be returned to the nominated officer for use as a training aid.

3.19.6. If an officer is wearing Body Worn Video, the process should be recorded, and the final indication captured on the camera. This is particularly important where a specified drug is detected.

3.19.7. Where the test is negative, that should be recorded in the officer's note book and the device disposed of using the general or clinical waste bin (a used device is not considered to be bio-hazardous).

3.19.8. There is no requirement for the officer to retain a 'positive' test. Any indications of the test device must be ignored after 15 minutes.

3.20 Draeger DT5000 Analyzer (Drug screening device)

3.20.1 This device is authorised for use by Kent Police officers within Tactical Operations Teams to undertake Preliminary Drug Screening Tests under the Road Traffic Act.

3.20.2 The only officers permitted to use them are Drug Recognition Officers who have been trained and authorised in the use of this device.

3.20.3 If an officer is wearing Body Worn Video, the process should be recorded, and the final indication captured on the camera. This is particularly important where a specified drug is detected.

3.20.4 Officers must check the packaging at the start of their shift, and in all cases before carrying out the test, to ensure that the single-use cassette is within the Expiry Date as shown on the packaging.

3.20.5 The DT5000 will display a warning message should an attempt be made to use an expired cassette.

3.20.6 Expired cassettes must be returned to the nominated officer for disposal.

3.20.7 The cassette can be disposed of by using the general or clinical waste bin (a used device is not considered to be bio-hazardous).

3.20.8 Where the test is negative, that should be recorded in the officer's note book and the device disposed of using the general or clinical waste bin (a used device is not considered to be bio-hazardous).

20.9 There is no requirement to enter the personal data of a person made subject of preliminary screening using this device, nor is there a requirement to produce a printout of the result.

3.20.10 The Draeger DT5000 must be ‘QA’ checked by a nominated officer every 30 days; failure to do so will render the device inoperative. It must also be serviced by a Draeger engineer at 6 month intervals; failure to do so will render the device inoperative.

4. Equality Impact Assessment

4.1. An Equality Impact Assessment has been carried out and shows the proposals in this policy would have no potential or actual differential impact on grounds of race, ethnicity, nationality, gender, transgender, disability, age, religion or belief or sexual orientation.

5. Risk Assessment

5.1. This SOP has been assessed as medium risk.

6. Consultation

6.1. Took place on 18 December 2013 with representation from Constable to Chief Inspector rank.

6.2. Corporate consultation took place in 2014 with representation from Finance, IT Security, Human Resources, Legal, Health and Safety, Estates and Freedom of Information.

7. Monitoring and Review

7.1. Ownership for the review of this procedure will be with the RPU Inspector. The SOP will be reviewed every two years with the next review taking place in March 2025.

8. Other Source Documents

• Road Traffic Act 1988
• R02 - Traffic Enforcement Policy
• O32 - Non Court Disposals Policy
• Human Rights Act 1998 (Article 6)
• Transport and Works Act 1992 (Railways and Trams)
• Railways and Transport Safety Act 2003 (Aviation and Shipping)

9. Security

9.1. Kent Police have measures in place to protect the security of your data in accordance with our Information Management Policy (Policy W1000 – Information Management).

10. Retention and Disposal of Records

10.1. Kent Police will hold data in accordance with our Records Review, Retention and Disposal Policy (Policy W1012 – Records Review, Retention and Disposal).