Do not forgive those who trespass, if it is the police and you have been drink driving

At Keep Your Licence, we deal with many clients who have been accused of drink-driving who have not been caught in the act (as it were) but because of an anonymous tip-off to the police, that leads them to visit the client’s home.

Although the actual drink-driving might have occurred some hours before, if the police can obtain a positive breath specimen, then there is a provision of the Road Traffic Act 1988 which permits a court to presume that the positive reading is indicative of the level of alcohol in the system at the time when the client last drove a vehicle.

This is only a presumption, and can be rebutted by a defendant. This normally takes the form of evidence of post driving consumption of alcohol (also often mistakenly referred to as the ‘hip flask defence’). This can often be a very effective defence to this type of drink-driving allegation. If you need help with this type of matter, then please call us for further advice.

However, the problem can often be avoided by having a simple understanding of the powers of the police in these circumstances. In order to be in a position to take a preliminary (‘roadside’) specimen of breath, a constable needs to have a reasonable suspicion that a drink-drive offence has been committed (however, this scenario has been slightly simplified). Without seeing the driver for him/herself, it is unlikely that the constable will be able to arrive at such a suspicion. The word of an anonymous member of the public is a dubious basis for a reasonable suspicion.

It is crucially important that drivers understand that a constable cannot enter your home for the purpose of obtaining a specimen of breath without your permission. Without permission, the constable is a trespasser and any attempt to take a breath specimen and/or to arrest you will be unlawful. Importantly, if in the circumstances where the constable is a trespasser, a driver refuses to provide a specimen, any conviction for ‘failing to provide a specimen’ is likely to be quashed. So if the constable is not allowed into the home, and is not permitted an exchange with driver concerned, then it is unlikely that the constable will be able to take the matter any further.


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However, it is important to note that if, subsequently, the driver provides an evidential specimen at the police station, the fact of the earlier trespass will not render it inadmissible, unless there has been some bad faith or trickery on the part of the police.

The question of when and to what extent a constable is a trespasser on your property is obviously a complex issue in itself. But if it is made clear to the constable that he/she should leave the premises, then it ought to suffice.

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If you have any queries about the advice contained in this article, or any other drink driving related issue, then please do not hesitate to contact Keep Your Licence on 0800 707 6004 for a free and without obligation chat.

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