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LosingGrip

Driving whilst unfit through drugs

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LosingGrip

Morning all,

After a little bit of clarification as the below has caused a couple of issues in custody.  I'm drug wipe trained.  Recently I arrested someone for driving whilst unfit through drugs (did a roadside breath test and it was zero, so didn't bother with drink as well).  He also failed the roadside drug wipe (cocaine).  

Got to custody, start the MGDD forms.  Get consent from the driver, inform the custody sgt who says he'll have to call the doctor as we are going for section 4 (unfit).  I was under the impression that because we have the positive drug wipe, that shows that the unfit is due to a drug being present and as such we don't need a doctor to attend and we can get the custody nurse  to take the blood.  

If however we had just nicked him for section 4 without the drug wipe test or a FIT we would need the doctor to attend.  

We did get the blood from the nurse after custody spoke to someone from traffic, but just wanted to double check that it is correct what I'm thinking.  

Thanks :). 

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HazRat

Custody Sergeants, bless their cotton socks don't always understand drug driving. The nurse can  take blood for the drug wipe (S5A), but you say you were going for S4 which would require evidence. Are you not field impairment trained?

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LosingGrip
13 minutes ago, HazRat said:

Custody Sergeants, bless their cotton socks don't always understand drug driving. The nurse can  take blood for the drug wipe (S5A), but you say you were going for S4 which would require evidence. Are you not field impairment trained?

I'm not (yet) but my colleague was.  

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HazRat

S4 unfit through drink is easy to evidence. S4 unfit through drugs does need slightly more evidence which can come from a FIT officer through the tests or from an FME. I find the latter will often sit on the fence and not commit themselves whether the impairment is due to a drug.

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andi

If you were going for s4, you need to evidence that they were impaired, and it was because of drugs. The drugs wipe shows that they had drugs in their system, but it doesn't evidence that they were impaired, or that the impairment was due to the drug. A FIT test, or some other evidence will be needed to show the impairment, and then the opinion of a medical professional to show that its because of a drug.

S5A you just have to show there's drugs in their system above the prescribed limit. That can be done just with a blood test (and hopefully in the future with saliva).

S4 has its place if you can't get blood, but it's much more complicated!

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Jedi Knight
On ‎04‎/‎03‎/‎2017 at 11:20, LosingGrip said:

Morning all,

After a little bit of clarification as the below has caused a couple of issues in custody.  I'm drug wipe trained.  Recently I arrested someone for driving whilst unfit through drugs (did a roadside breath test and it was zero, so didn't bother with drink as well).  He also failed the roadside drug wipe (cocaine).  

Got to custody, start the MGDD forms.  Get consent from the driver, inform the custody sgt who says he'll have to call the doctor as we are going for section 4 (unfit).  I was under the impression that because we have the positive drug wipe, that shows that the unfit is due to a drug being present and as such we don't need a doctor to attend and we can get the custody nurse  to take the blood.  

If however we had just nicked him for section 4 without the drug wipe test or a FIT we would need the doctor to attend.  

We did get the blood from the nurse after custody spoke to someone from traffic, but just wanted to double check that it is correct what I'm thinking.  

Thanks :). 

I'm slightly puzzled as to why you arrested them for Section 4?  Why didn't you arrest for Section 5A? `

Did your colleague give evidence for the section 4?

In the Met at least as far as I know you need to be FIT trained before you can use the drug wipes which makes things a lot easier to deal with  

 

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andi

Same in GMP

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ForceHQ
On 04/03/2017 at 11:20, LosingGrip said:

 

If however we had just nicked him for section 4 without the drug wipe test or a FIT we would need the doctor to attend.  

 

My understanding is it can be any HCP not just a doctor so a state registered nurse/para would suffice.

I also think the requirement for an HCP is not to aid in the prosecution of the unfit element, but merely to rule in or out the possibility the DPs current status could be as a result of an illegal drug, allowing a blood test to be conducted. With a postiave drugs wipe, this step is not required.

This is my interpretation, based on having a quick re read of the MGDD forms, (mainly B).

 

As others have said I would of gone for over the specified limit instead of unfit through drugs. 

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Jedi Knight
12 minutes ago, ForceHQ said:

My understanding is it can be any HCP not just a doctor so a state registered nurse/para would suffice.

I also think the requirement for an HCP is not to aid in the prosecution of the unfit element, but merely to rule in or out the possibility the DPs current status could be as a result of an illegal drug, allowing a blood test to be conducted. With a postiave drugs wipe, this step is not required.

This is my interpretation, based on having a quick re read of the MGDD forms, (mainly B).

 

As others have said I would of gone for over the specified limit instead of unfit through drugs. 

When you say the DP's current status do you mean at the time of the Doctors examination or to confirm the PC's observations at the time the DP was stopped?

As I understand it, in relation to drugs, the Doctor's role is to say at the time a Field Impairment Test was carried out along with manner of driving etc the results indicated the presence of a drug. If they agree that the results indicate the presence of a drug and with an examination of the DP along with  Q's and A's etc then they can take blood (or urine).

The issue being that sometimes a doctor could examine the DP a couple of hours after the actual stop for various reasons ( held up somewhere  etc)and the effects of the drug could have worn off but the drug still be present in the body..

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ForceHQ
4 minutes ago, Jedi Knight said:

When you say the DP's current status do you mean at the time of the Doctors examination or to confirm the PC's observations at the time the DP was stopped?

As I understand it, in relation to drugs, the Doctor's role is to say at the time a Field Impairment Test was carried out along with manner of driving etc the results indicated the presence of a drug. If they agree that the results indicate the presence of a drug and with an examination of the DP along with  Q's and A's etc then they can take blood (or urine).

The issue being that sometimes a doctor could examine the DP a couple of hours after the actual stop for various reasons ( held up somewhere  etc)and the effects of the drug could have worn off but the drug still be present in the body..

Both the exam and the time the PC dealt with them. I think somewhere in the back of mind there was an unsuccessful challenge in court that the Dr/HCP used the PCs observations and case law said that was fine under Section 7. So in short I agree with your interpretation!

 

Thank god for google:  Angel v Chief Constable of South Yorkshire

Edited by ForceHQ
Case law found and added.

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LosingGrip
On 07/03/2017 at 09:32, Jedi Knight said:

I'm slightly puzzled as to why you arrested them for Section 4?  Why didn't you arrest for Section 5A? `

Did your colleague give evidence for the section 4?

In the Met at least as far as I know you need to be FIT trained before you can use the drug wipes which makes things a lot easier to deal with  

 

We did for for 5A as well.  Reason we also went for unfit is last time he was just nicked for 5A the nurse couldn't get blood out.  He consented, but his veins were rubbish.  This time the nurse was able to get blood, so I think the unfit may have been dropped (I wasn't OIC so not too sure whats happened after).  

Down here you don't have to be FIT trained to be drug wipe trained, but seeing as its all but a handful of drug wipe trained are traffic that isn't a huge problem (I am hoping to be FIT trained in the near future).  

Thanks for all the replies, all very useful.

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Sceptre
On 3/4/2017 at 15:07, HazRat said:

S4 unfit through drink is easy to evidence. S4 unfit through drugs does need slightly more evidence which can come from a FIT officer through the tests or from an FME. I find the latter will often sit on the fence and not commit themselves whether the impairment is due to a drug.

Surely it can't be any harder to prove that impairment is due to a drug than it is to prove impairment is due to drink, it's just less common? Ultimately if we can prove impairment and the presence of drugs then it's something of a foregone conclusion for the magistrates, I can't ever recall hearing of any alcohol cases where a bench acquitted because they didn't feel able to make that link.

NPS seems the obvious example as there's no laboratory test for them so a blood specimen wouldn't be of much use. I'd be surprised if someone somewhere hasn't charged someone under S4 who was on legal highs yet.

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Jedi Knight
12 hours ago, Sceptre said:

Surely it can't be any harder to prove that impairment is due to a drug than it is to prove impairment is due to drink, it's just less common? Ultimately if we can prove impairment and the presence of drugs then it's something of a foregone conclusion for the magistrates, I can't ever recall hearing of any alcohol cases where a bench acquitted because they didn't feel able to make that link.

NPS seems the obvious example as there's no laboratory test for them so a blood specimen wouldn't be of much use. I'd be surprised if someone somewhere hasn't charged someone under S4 who was on legal highs yet.

It can be. unfit through drink can be fairly easily proved as there will be the aroma of intoxicating liquor in the mix somewhere and the vast majority of officers can tell the signs of being drunk even though the accused may pass a breath test and a FIT test will usually confirm this. Besides you don't need to have a doctor confirm anything there as you just put them on the Breath Test Machine at the station and that gives you evidence of the alcohol use. You then just use the FIT test results along with Breath results for your evidence.

If they refuse the breath test at the station they get charged with refusal.

Drugs on the other hand usually are harder to determine. Sometimes you'll get a clue as to what drug they use say if someone has the aroma of Cannabis about them. Other drugs will have no smell and so you need to go with the results of the FIT test. Even then the issue there is that the results could be because of some behavioural / medical issue and not due to drugs. So the FME will, themselves need to be sure the accused condition is due to some drug. before they'll take blood.

 

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Sceptre
1 hour ago, Jedi Knight said:

It can be. unfit through drink can be fairly easily proved as there will be the aroma of intoxicating liquor in the mix somewhere and the vast majority of officers can tell the signs of being drunk even though the accused may pass a breath test and a FIT test will usually confirm this. Besides you don't need to have a doctor confirm anything there as you just put them on the Breath Test Machine at the station and that gives you evidence of the alcohol use. You then just use the FIT test results along with Breath results for your evidence.

If they refuse the breath test at the station they get charged with refusal.

Drugs on the other hand usually are harder to determine. Sometimes you'll get a clue as to what drug they use say if someone has the aroma of Cannabis about them. Other drugs will have no smell and so you need to go with the results of the FIT test. Even then the issue there is that the results could be because of some behavioural / medical issue and not due to drugs. So the FME will, themselves need to be sure the accused condition is due to some drug. before they'll take blood.

I'm talking about how we can prove that someone's obvious impairment is caused by the drug or by the alcohol in their system which Hazrat says is the evidential hurdle - not only does that seem to me next to impossible for anyone to say for certain, and I'm not surprised doctors hedge their bets on it, but in my years of being drink drive trained I haven't heard anyone make the same argument with respect to alcohol. If we find someone who exhibits the signs of drunkenness and we confirm that they have alcohol in their system then unless there appears to be a medical issue such as diabetes we simply conclude that the alcohol is what caused the impairment to their ability to drive and invariably so do the courts - I can't see why the same presumed link between impairment and the substances in their system shouldn't be true for drugs. 

Legal highs I threw into the mix as an example of when all we would have is evidence of impairment (whether by a FIT test or layman's evidence from officers present) and circumstantial evidence of drug use from the packets etc in their possession, and no drug wipe, blood test or meaningful medical evidence as few doctors know a great deal about NPS. Even so I don't believe for one moment that it would be impossible to convict someone found behind the wheel off their head on spice for driving whilst unfit because the court would conclude that the link between the legal high and the impairment could not be proven.

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