Does opening a car door constitute a search of a vehicle?

24 August 2020

Not reviewed after the date of publication

Question: 

A vehicle was stopped by officers due to concerns it may be unsafe, does opening the doors of a vehicle constitute a search under section 67 of the Road Traffic Act and is it lawful?

Answer:

Section 67 of the Road Traffic Act 1988 provides that an authorised examiner may test a motor vehicle on a road for the purpose of ascertaining compliance with the construction and use requirements, and the requirement that the condition of the vehicle is not such that its use on a road would involve a danger of injury to any person, and bringing to the notice of the driver any failure to comply with those requirements.

The term 'authorised examiner' is defined in s.67(4) RTA 1988 and includes 'a constable authorised so to act by or on behalf of a chief officer of police'.

This provision used to confine roadside checks to tests of compliance with the construction and use requirements relating to (i) brakes, silencers, steering gear and tyres, (ii) the prevention or reduction of noise, smoke, fumes or vapour and (iii) lighting equipment and reflectors. However, checks may be made to test compliance with all construction and use requirements and with the requirement that the condition of the vehicle is not such that its use on a road would involve a danger of injury to any person e.g. regulation 100 of the Road Vehicles (Construction and Use) Regulations 1986.

Furthermore, s.67(2) RTA 1988 provides that 'for the purpose of testing a vehicle under this section the examiner may require the driver to comply with his reasonable instructions'.

Therefore, providing officers are 'authorised' under section 67 and are concerned about the safety of the vehicle in terms of, for example, reg.100 of the of the Road Vehicles (Construction and Use) Regulations 1986, then in our opinion, they would be entitled to stop the vehicle and make sure it was safe. Additionally, if that meant asking the driver to open the rear of the vehicle so they could check the load etc., in our opinion, that would be a 'reasonable instruction' to the driver.

However, if this action were challenged, it would ultimately be a matter for a court to decide upon all of the facts whether the particular examination comes under the s.67 provisions.

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