Lesson 10.2 S4 and 5A RTA 1988 Flashcards
What is section 4 RTA 1988?
It is an offence for any person to drive or attempt to drive or be in charge of a mechanically propelled vehicle (e.g. motor vehicle, grass cutter, golf buggy) on a road or other public place whilst unfit through drink and drugs.
What is the main difference between s4 and s5?
Prosecution must prove the accused was :-
- Unfit to drive I.e. their ability to drive properly was for the time being impaired and
- the impairment was due to drink or drugs. Impairment can be caused by prescribed, controlled and legally held, solvents and substances
- for section 5, the accused must be over the prescribed limit, not simply impaired.
Procedure at locus?
Get suspect to provide a breath test.
When this is negative and impairment is still apparent you may request the attendance of a specially trained officer to carry out further tests to determine whether the person is fit to drive.
Where a person is driving a mechanically propelled vehicle which is not a motor vehicle I.e. golf buggy or a grass cutter etc, whilst apparently impaired, you can’t request a breath sample.
Instead observe the driver and note their behaviours.
What is a preliminary impairment test?
S6B RTA 1988 provides that a preliminary test can be conducted by a constable observing the driver in the completion of tasks or by observing the driver.
What is a preliminary drug test?
Section 6C allows a constable to take a sample of sweat or saliva to test. For a drug swipe testing got cannabis and cocaine.
Can only be carried out by a trained officer
Hence when impairment by anything other than alcohol is suspected you should request a specially trained officer.
If they are not available use your own judgment based on evidence you have gathered to decide whether the person is unfit to drive, ensuring this is all recorded.
Offences and powers of arrest?
It is an offence to refuse to take the tests without a reasonable excuse.
Power of arrest comes from
CRIMINAL JUSTICE (SCOTLAND) ACT 2016 As not officially accused for s4 RTA 1988.
As with breath test there is power of arrest attached to the preliminary impairment tests if the person fails the set tests or if they refuse to take them.
Station procedure?
Similar to s5. Carried out using step by step explanatory forms.
At the police station a person arrested under s4 offences is required to provide a:-
- Specimen of breath or
- A sample of blood or urine for analysis
Police must use a machine for carrying out breath analysis unless it is not available, or accused has reasonable excuse for refusing to provide a sample of breath.
If there is suspicion that only drugs are affecting the person, no breath specimen is required.
You always need consent for blood and urine samples to be taken.
Where consent to medical examination is withheld the fact of such refusal can be used as evidence.
But the police doctor if summoned should confine themes-elves to observations without examination or tests.
What is the hospital procedure?
When a person suspected of a s4 and 5 offence is admitted to hospital a different procedure must be carried out, both in relation to breath tests and specimens for analysis (same as s5)
The following three main differences apply to the procedure at hospital:-
1) At hospital the suspect is the responsibility of the doctor in charge. The officer must inform the doctor of the requirements in respect of the patient. The doctor in charge may object to any one of the requirements or requests, on grounds that it may be prejudicial to the proper care or treatment of the patient.
2) patient in hospital cannot be arrested under s6 of the act
3) Because breath analysis machines are not available at hospitals, blood and urine are the only alternatives for analysis.
What is s5A RTA 1988?
S5A creates an offence relating to drug consumption exceeding specified limits.
Applies to those who do not appear unfit to drive and display no visible signs of impairment. Suspicion may come from intelligence or evidence of drugs misuse within the vehicle.
Creates an offence of driving or being in charge of a motor vehicle on a road or other public place with a specified drug in your system, above the specified limit for that drug. Set to contents within blood only.
Regulations specify 17 drugs, some illicit, some medical, each with a specified limit. A driver who exceeds those limits, regardless of their fitness to drive, commits a S5A offence.
Same as section 5 as it requires saliva and arrest is under s6 of RTA. The word alcohol being replaced with drug within the requirement.
The drug swipe test can only identify cannabis and cocaine. If negative procedure must end there, regardless of suspicion surrounding any of the other specified drugs. If there is any sign of impairment, procedure for s4 must follow.
If blood samples taken through the process identify any of the specified 17 drugs and limits for those are exceeded then the accused may be reported for contravention of s5A
