Police power to require a preliminary breath test
When a police officer believes that a driver has been drinking alcohol he may require that driver to provide a preliminary sample at the roadside. This test tells the police whether there is alcohol in your breath and whether it is likely that you are over the drink driving limit. It does not provide an evidential readout that can be relied upon in court in a drink driving trial.
The police do not have a blanket power to require drivers to provide a roadside sample. This article will look at the circumstances in which the police can require you to provide a roadside breath sample.
When can the police make you take a breath test?
There are four situations in which the police can require you to provide a sample of breath at the roadside. These are contained in section 6 of the Road Traffic Act 1988.
In this section we will use the word €driving€ but you should understand that driving in this context means, €driving, attempting to drive or being in charge of a motor vehicle€.
Drink driving reasons
There are two reasons relating to drink driving that give the police power to order you to take a roadside breath test. To rely on either of these reasons, the police must reasonably suspect that you are under the influence of alcohol or drugs. This does NOT mean that the police must believe that you are unfit to drive or over the drink driving limit!
First, the police officer has seen you driving and suspects you to be under the influence of drink or drugs. This reason would usually arise where your driving was erratic or unusual, e.g. you were swerving or driving unusually slowly, etc.
Secondly, if a police officer believes you were driving he can require you to take a roadside breath test. A common example of this is where a vehicle registered to you is seen driving erratically or committing an offence but is not stopped. Later, the police come to your home, find the vehicle outside your home and form the opinion that you are drunk.
Traffic offences
The police may administer a roadside breath test where they suspect you are or have been driving and you have committed a traffic offence. The police do not have to suspect that you were drink driving or that you were unfit drive in anyway; they do not even have to suspect that you were under the influence of alcohol or drugs.
Road Traffic Accidents
Where an accident occurs €owing to the presence of a motor vehicle on a road€ and the police officer reasonable suspects that you were driving, attempting to drive or in charge of the vehicle at the time he may require you to provide a roadside breath test.
The wording of this section makes clear that your vehicle need not be involved in the accident, i.e. you don't have to have crashed. It is sufficient if somebody says that the accident occurred because of your car, e.g. you emerge from a junction suddenly causing another vehicle to swerve and hit another car.
Once again, the police do not have to suspect that you are drink driving to rely on this power.
Are random breath tests lawful?
No.
There is a lot of confusion about whether random roadside breath tests are lawful or not. The confusion arises because people do not appreciate the distinction between the police power to stop traffic and the police to administer a roadside breath test when they suspect somebody of drink driving.
Section 163 of the Road Traffic Act 1988 requires drivers and cyclists to stop when required to do so by a police officer in uniform. Failing to stop is a criminal offence. This section is the basis for the police's power to stop vehicles on the road. It does not grant any other power.
The police may conduct a random stop under s. 163 and then form the opinion that you are drink driving or under the influence of alcohol or drugs under s.6(2) or (2) and at that point require you to provide a roadside breath test.