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RGP’s Response to the recent Breathalyser Test Article

 

Protecting Road Users:  Random Roadside Checks

 

The RGP regularly conducts random roadside checks to ensure that road users are acting within the law, are fit to drive and have the necessary authority to drive the vehicle. 

 

Recent, incorrect, social medial commentary has suggested that the Royal Gibraltar Police may be acting outside the law when requiring a driver to take a roadside breathalyser test as part of a random roadside check. 

   

The thrust of this incorrect proposition is that the RGP has no power to carry out random roadside checks, and that the administration of preliminary breath tests is restricted to very specific circumstances. 

 

These commentaries have even suggested that Police Officers need to clarify what power in law they are exercising to establish road checks at all and, in that process, administering breathalyser tests.

 

The RGP’s Power to Stop Vehicles

 

The erroneous argument being raised centres around ‘road checks’ and refers to the power of police officers, pursuant to section 10 of the Criminal Procedure and Evidence Act 2011, (‘the CPEA’) to set up road check for the purpose of ascertaining whether a vehicle is carrying a person who i) has committed an offence (other than a traffic offence), ii) is a witness to an offence, iii) intends to commit such an offence or iv) is unlawfully at large. 

 

The RGP could not, and has not, relied upon this legislation in conducting the roadside checks that some commentators have complained. The RGP has acted and is acting to protect road users under the powers contained in section 53(3) of the Traffic Act 2005 to stop any vehicle on the road without needing reasonable grounds to do so but to do so to ensure that the driver is qualified, insured and fit to drive on the road. The section specifically provides as follows:

 

Section 53(3) Traffic Act 2005

 

A person driving a motor vehicle on a road shall stop the vehicle on being required by a police officer in uniform and if he fails to do so is guilty of an offence and is liable on summary conviction to a fine at level 2 on the standard scale. 

 

This power is the equivalent of the United Kingdom power found within the Road Traffic Act 1960. This legislation has been considered by courts in the United Kingdom on a number of occasions and a substantial body of case law leaves no room for doubt that a random stop of vehicles to see if drivers have been drinking is lawful.

 

Power to Administer a Roadside Breath Test

 

The power to administer roadside breath tests is to be found in section 63B of the Traffic Act 2005. This provides for a number of circumstances where a roadside breath test can be administered. One of those circumstances is where a police officer reasonably suspects that the driver is driving, is attempting to drive or is in charge of a motor vehicle on a road or other public place and has alcohol or a drug in his body or is under the influence of a drug. Therefore, if a police officer conducts a random check of a vehicle and in doing so has reasonable grounds for believing that the driver is driving having consumed alcohol, then the driver may be required to take a breath test.  

 

Confidence in RGP Operations 

 

The social media commentary that suggests that the RGP has no legal jurisdiction for the foundation of its campaign to protect road users by carrying out its road side breath test campaign is wrong given that it is based on a flawed and incomplete analysis. 

 

Section 53(3) of the Traffic Act allows the RGP to carry out random stops and that these are permissible without specific or reasonable grounds to suspect that an offence has been committed. However, this section does not automatically mean that an officer would conduct a preliminary breath test. An officer will only do so if he or she has reasonable grounds for believing that the driver is driving under the influence of alcohol or drugs.  

 

This clarification is provided to ensure that the public retains confidence in the RGP’s campaign to ensure that our roads remain safe, and the legal basis for it and are not mislead by incorrect media commentary. 

 

Measures to ensure that drivers do not drink and drive are particularly important at this time of year and the campaign to secure road safety must not be erroneously undermined.

 

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