Wednesday, 23 July 2014

Can police use any blood given at a hospital in a drink driving case?

Can the police use any sample of blood taken from a suspect as part of their investigation into a drink driving or excess alcohol offence?

A common scenario we at the London Drink Driving Solicitor come across is a driver is arrested on suspicion of driving with excess alcohol.  He or she is taken to hospital for one of any number of reasons and, while there, a doctor or nurse takes a specimen of blood from them as part of the diagnosis/treatment.

Often, the police are unable to require the person to consent to providing a specimen of blood for alcohol analysis as part of their investigation due to the ongoing treatment the person is receiving.  By the time the police can make the request, several hours may have passed meaning that the alcohol reading will no longer reflect the level of alcohol in that person's system when they drove.

The question then arises whether the police can legitimately use some or all of the sample of blood taken by the medical staff as part of the diagnosis/treatment?

The answer is found in section 15 of the Road Traffic Offenders Act 1988, which deals with the use of specimens that have been taken for use in the prosecution of drink driving/excess alcohol cases.

Section 15(4) tells us that "A specimen of blood shall be disregarded unless - (a) it was taken from the accused with his consent... or (b) it was taken from the accused by a medical practitioner under section 7A of the Road Traffic Act 1988 and the accused subsequently gave his permission fora laboratory test of the specimen."

Section 7A allows a medical practitioner who is NOT connected with the accused's clinical treatment to take the specimen of breath where the accused is unable to give consent.

Section 15(4) is somewhat vague on the meaning of consent and could on one interpretation allow for any sample to be used for laboratory analysis.  However, elsewhere the Act tells us that the police constable must inform the suspect that a requirement to provide a specimen has been made for the purposes of the investigation and that failure to provide it will render him or her liable to prosecution.  The warning must be given by a police officer and not by a medical professional.  We can therefore conclude that "consent" must mean consent that is informed by the appropriate warning being given by the officer.

Since no such warning would have been given prior to the taking a blood sample for use in connexion with the treatment or diagnosis of the suspect's condition we can conclude that it would not be lawful for the police to use such a sample as part of their investigation into a drink driving or excess alcohol allegation.

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