Breath Testing

Section 6(1) of the RTA conferred the power to require a breath test only to officers in uniform. The courts have already ruled against a challenge where the officer was not wearing his helmet (31). In the United Kingdom, the breath test may be taken either at or near the place where the officer makes a request for one. Normally, that would be at the roadside but not necessarily at the scene of the offense. If an accident occurs owing to the presence of a motor vehicle on a road or other public place, a police officer may require any person who he or she has reasonable cause to believe was driving or attempting to drive or in charge of the vehicle at the time of the accident to provide a specimen of breath for a breath test. The test may be taken at or near the place where the requirement was made or, if the police officer thinks fit, at a police station specified by the officer. In the United States, roadside breath testing, with nonevidentiary screening devices, is permitted only in "zero tolerance" states, with drivers under the age of 21 years.

In the United Kingdom, a person failing to provide a specimen of breath without reasonable excuse is guilty of an offense. A reasonable excuse would include someone who is physically or mentally unable to provide a sample, or if the act of providing the sample would, in some way entail risk to health. In most US states, refusal to submit to a breath (or blood or urine) test is admissible as evidence in criminal proceedings and, as a rule, leads to license suspension, even if guilt is not proved in court. In some states, refusal is actually considered a separate crime. This somewhat strange situation comes about because most US states and most other countries have per se laws for alcohol: an alcohol level above some preset limit is, by law, proof of intoxication (32,33).

Section 6 of the RTA allows police officers to arrest a driver without a warrant if the breath test is positive or if the driver fails or refuses to provide a specimen of breath and the officer has reasonable cause to suspect alcohol in his or her body. Additionally, if an accident occurs owing to the presence of a motor vehicle on a road or public place and a police officer reasonably suspects that the accident involved injury to another person, then for the purpose of requiring a breath test or arresting a person, the officer may enter (by force if need be) any place where that person is or where the officer reasonably suspects the person to be.

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