Power of entry following negative breath test / refusal

11 December 2019

Not reviewed after the date of publication

Question:

Regarding the power of entry/arrest under section 6E of the Road Traffic Act 1988, is that restricted to incidents involving personal injury?

If an officer attends a damage-only incident (no personal injury involved) and one of the drivers gives a positive specimen of breath or refuses to give a specimen, and then runs into a private dwelling, what power would an officer have to pursue him?

Answer: 

Section 6E of the Road Traffic Act 1988 provides a power of entry for a constable. This power can be used for the purpose of:

(1)(a) imposing a requirement by virtue of section 6(5) following an accident in a case where the constable reasonably suspects that the accident involved injury of any person, or
(1)(b) arresting a person under section 6D following an accident in a case where the constable reasonably suspects that the accident involved injury of any person.

There is a requirement in both subsections that the 'constable reasonably suspects that the accident involved injury of any person'. The legislation is quite clear on this and therefore, we are of the opinion that this power of entry could not be used in the case of a damage-only accident.

In a case where the person gave a positive specimen of breath and then ran into a private dwelling, we are of the opinion that a power of entry may be used under section 17 of PACE 1984. Section 17(1)(c)(iiia) provides a power of entry for the purpose of arresting a person for an offence under section 4 of the RTA 1988 (drive when under the influence of drink or drugs).

However, the same section cannot be used for failure to co-operate with a preliminary test. That offence is not covered specifically in section 17. The offence is not an indictable offence and therefore the power under section 17(1)(b) may not be used either. In such cases we would therefore suggest that alternatives to arrest are considered such as issuing a written charge and requisition.

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