Section 4 of the Road Traffic Act, 1988 - What is it? What kind of sentence can the court impose? And what common defences can be raised?
What is Section 4?
The main difference between Section 4 (driving whilst unfit through drink or drugs), Section 5 (drink driving) and Section 5A (drug driving) is the requirement on the police to prove that a person is impaired. In Section 5 or Section 5A cases, it's not necessary to prove that a person was impaired as a result of a substance they'd consumed. It's only necessary to prove that they were above a legal limit - and that of course is easier for the prosecution because they're going to rely on breath results, blood results and urine results in those cases.
In Section 4 of the Road Traffic Act, they don't have to prove necessarily that a person was over the legal limit, they've got to try and demonstrate that you were impaired as a result of a substance which you've consumed and that's more difficult than it might sound for various reasons. The main reason is because different things can cause impairments. For example, the police might say...
"Tommy was impaired because his eyes were glazed...Tommy was impaired because his speech was slurred...",
But everyone knows that it's not just alcohol that might lead to your eyes being glazed or your speech being slurred. It might be that Tommy suffers with anxiety, it might be that he's just finished a long shift at work and he's tired, he's exhausted. There are different things that can cause impairment. It's very difficult for the police to isolate the impairment in a Section 4 case directly to the drug or alcohol consumption. That may require some expert evidence which they don't always have in these kinds of cases.
What sentence can the court impose?
As far as sentencing is concerned, Section 4 offences are similar to fail to provide. This is because there doesn't have to be an alcohol or drug level, so the court will instead consider the level of impairment in a person. If the level of impairment is minor, or there is limited evidence that a person was impaired, then you're likely to receive a 12-month driving disqualification. In drink driving cases, you can take the drink driving rehabilitation course which can reduce the ban by 25%, but there is currently no course for drug driving. If there's evidence of serious impairment, then the police will make a point of that, which may increase the driving disqualification. If you've got previous convictions of similar offences, then it could be a three-year driving disqualification as a minimum.
What are the most common defences?
The first and arguably the best defence is that you weren't impaired as a result of a substance that's being consumed. Remember that it's not enough for the police to prove that you were impaired in a Section 4 case. They've got to go one step further and prove that the impairment seriously affected your ability to drive. If you accept that you were impaired but you weren't impaired as a result of alcohol or drugs, then you aren't guilty of a Section 4 offence. If could be that you appeared impaired due to a medical prescription, or mental health, or learning difficulties. If you consent to a sample and the levels come back that there was no evidence of alcohol or drugs, then the likelihood of the case being dropped becomes even stronger. You also need to know that the sample was taken under lawful circumstances and the police followed the correct codes of practice. Were you given the statutory warning? Did the officer complete the MGDD documents?
The Preliminary Impairment Test
In s4 Unfit cases, the police may also conduct a preliminary impairment test. Otherwise known as the 'FIT' (Field Impairment Test). See the form below, you might recognise this if it was completed by the arresting officer.
The procedure consists of 6 tests relating to cognitive ability and motor function. The police will assess your ability to assess when 30 seconds has passed with your eyes closed and your head tilted back. This is referred to as the Modified Romberg Balance Test. The police would also ask you to stand on one leg and count out loud. This is the One Leg Stand Test. We were once told by a client that the police made him carry out these tests in the wind and rain, on the roof of a police station, whilst wearing flip flops!
During the test, the police officer should also be completing contemporaneously the MGDD/F form. This contains the instructions the police officer should give to a suspect and the space to fill out the result of each test. At the end of the tests, the police will note down whether you have passed or failed. A failed test would normally form part of the case against you.
REMEMBER: You can object taking part in an impairment test. There's no offence that you can be charged with for refusing to cooperate with this test! It is also worth noting that there is no inference drawn in court suggesting that you were impaired because you refused to cooperate with the test.
The MGDD/F form
If you have been charged with a section 4 offence, please don't hesitate to get in touch with one of our solicitors on 0151 422 8020. We also have a full video on this topic on our YouTube channel if you would like more information (see below).
