Can a police officer arrest you inside your home for drink driving?
Police officers have wide ranging powers to enter premises, but their powers are not unlimited and are subject to restraint by the law; an officer misusing his or her powers risks having evidence they discover excluded by the trial judge.
Broadly speaking the police can enter premises without the permission of the owner to arrest somebody for a crime or if they think a life is in danger. A court can also authorise the police to enter somebody’s home but that isn’t usually something that is relevant in a drink driving case.
Protecting life can be very relevant to drink driving. Often police become involved because a car has crashed and the driver has left the scene. Police trace the registered keeper and attend his or her home. Police may take the view that the driver might be injured and inside so force entry. If they find the driver intoxicated inside, then they can require a specimen of breath. It’s cases where there is no reason to fear for someone’s safety that things become more interesting.
Section 17 of The Police and Criminal Evidence Act 1984 allows police to force entry to a home or other private premises to arrest somebody for an indictable offence – drink driving is NOT an indictable offence – and for a series of specific offence, including alcohol offences committed by transport workers such as a train driver, guard, conductor or signalman. Neither of those powers applies to drivers of road vehicles, save for trams.
In 1988, Parliament enacted the Road Traffic Act, it would eventually be amended to include section 6E, which permits police officers to use reasonable force to enter premises where they suspect a drink driver may be provided the police officer reasonably suspects that the drink driver has ben involved in an accident that caused injury to any person. But if there’s no injury then there is no power to enter your home.
That means there is a gap where police have no power to enter your home without your permission. Take a common situation where somebody calls the police to say they’ve seen you drinking and that you have now got into your car – this is quite a common scenario and can lead to false accusations where somebody gets home and then starts drinking. Over the years, we’ve had clients call us saying they had been the designated driver with a group of friends who were drinking but somebody has reported them maliciously, usually because of a past disagreement and then they’ve been arrested because they had a drink when they got home. In one case, the police attended our client’s home two-and-a-half hours after he got home, by which time he had ordered and eaten a takeaway and consumed alcohol with his flatmate.
What difference does it make? Well, first because there is no power to force entry the police have no right to do so. This means that where they do act unlawfully in entering your property the subsequent arrest may be unlawful. While that doesn’t mean that any evidence flowing from the arrest will automatically be excluded by the court, it does give you a good chance of excluding evidence.
In the case of Sharpe v DPP, police officers followed Mr Sharpe and observed him driving erratically. He pulled on to his driveway and the police followed him. Mr Sharpe told the police officers they were trespassing and ordered them to leave, which they did; however, they dragged Mr Sharpe with them onto the public road. The magistrates convicted Mr Sharpe; however, he appealed to the High Court which found in his favour saying that the actions of the police was such that the evidence flowing from their conduct should be excluded. This meant that the evidence from the breath test machine was excluded and thus there was no longer any evidence that Mr Sharpe was over the drink driving limit. He was therefore acquitted of drink driving.
When you’re accused of any criminal offence, but especially one where the law is as technical as it is with drink driving, it is important that you are properly represented by a solicitor who is able to identify points that go in your favour. The points might be technical, such as an error in the breath testing procedure, or they might be legal, such as an unlawful arrest, but unless your solicitor can spot them you can’t take advantage of them.
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