304.When investigating whether a driver has committed a drink driving offence, a constable may, under section 7 of the Road Traffic Act 1988 (RTA 1988 1988), require the driver to provide a specimen of blood for testing in a laboratory. The offences in question are: causing death by careless driving when under the influence of drink or drugs (section 3A, RTA 1988); driving or being in charge of a vehicle when under the influence of drink or drugs (section 4, RTA 1988); and, driving or being in charge of a vehicle with alcohol concentration above the prescribed limit (section 5, RTA 1988). From the sample they can discover the level of alcohol present and whether the legal limit has been exceeded. This helps determine whether a charge should be brought and the nature of any such charge.
305.The current position is that intimate samples, such as specimens of blood, can be taken, for whatever purpose, with the driver’s consent, and only by a medical practitioner. This position is established by section 62(9) of PACE and section 11(4) of the RTA 1988.
306.As regards section 62(9), a yet to be implemented amendment was made by section 80(2) of the Criminal Justice and Police Act 2001. This allows nurses to take such section 62(9) samples at police stations. (Section 54 of this Act further broadens the provision to allow all registered health care professionals to take such samples.) Section 80(2) of the Criminal Justice and Police Act 2001 did not however amend section 11(4) of the RTA 1988. As a result, in road traffic cases the specimen must still be taken by a medical practitioner.
307.The effect of this section is to enable, in routine cases, a registered health care professional instead of a medical practitioner to take the specimen required. The new provision aims to help prevent delays and removes the need to call on a medical practitioner unnecessarily.
308.Subsection (1) provides that it shall be the constable making the requirement who decides whether the specimen is taken by a registered health care professional or a medical practitioner. This is to avoid the possibility that a person might argue he would consent to the taking of a specimen by a medical practitioner (who might not be readily available) but not by a registered health care professional.
309.Under the present section 7 there can be no requirement to provide a specimen where a medical practitioner is of the opinion that for medical reasons a specimen cannot or should not be taken. Subsection (2) provides that a registered health care professional’s opinion should carry the same weight unless a medical practitioner is of the contrary opinion.
310.Subsections (3) and (4) define the term ‘registered health care professional’ (see paragraph 303 above).
311.Subsection (5) confirms that a specimen is properly taken only if the subject consents and the specimen is taken by a medical practitioner or, if at a police station, by either a medical practitioner or a registered health care professional.