HC 460 - Drink and drug driving law

Memorandum from the Association of Chief Police Officers (ACPO) (DDD 11)

1 Should the permitted blood alcohol limit be reduced as proposed?

1.1 Each year, around 450 people die in a road collision involving a drink driver. It is a contributory factor that is largely impervious to intervention and proving difficult to tackle. ACPO believes that in order to reduce the unacceptable toll of death and serious injuries on our roads, the Government must send a clear and unequivocal message to the public that drinking and driving is both socially and morally unacceptable. Even one drink can impair a person’s ability to drive safely and the message that must be delivered consistently is that when people are drinking, they should leave the car behind.

1.2 The current alcohol limit of 80 mg per 100ml of blood is not consistent with that message. It creates the impression that there is an acceptable ‘quota’ of alcohol consumption which some drivers then attempt to maximise through interpretations based on their own perceptions of what is an appropriate amount. This often leads to excess consumption or consumption at levels, which although not unlawful are unsafe for some drivers. ACPO supports the idea of a reduction in the drink drive limit to a level which is both safe and supports the message that drinking and driving do not mix. In an ideal world, the limit would be zero. However, we accept that this is not realistic given the presence in the body of naturally occurring alcohol and the residual effects of previous drinking.

1.3 We also accept that this would be unenforceable and have significant social implications that may not be acceptable to society as a whole. At this stage, we are not clear what constitutes an appropriate level. We are conscious that the majority of European countries now have a limit of 50mg per 100ml level or lower although this limit is usually associated with an administrative penalty not involving lengthy disqualification. Only at 80mg and above do penalties mirror our own. Drivers cross national borders on a regular basis and there is some merit in standardising limits for the sake of simplicity and clarity. There is some evidence to show that a reduction in the limit to 50mg per 100ml would save 64 lives a year. However, it is not clear what the impact of a reduction to 30mg or 40mg would be and whether this might produce proportionally greater benefits in terms of casualty reduction.

1.4 The recent introduction of roadside breath devices with a memory and data recording facility now provides a unique opportunity to gather the evidence that is necessary to enable an objective decision to be made. Initial figures gathered by the police indicate that 2% of drivers breath tested following a collision produce a result in the 50 to 80 range. A reduction in the limit will alter the behaviour of many drink drivers and will reduce drink drive casualties.

1.5 From now on data will be gathered which will enable a detailed analysis to be made of the impact of various levels of alcohol consumption on road casualties. This in turn will enable an objective assessment to be made to identify what is an appropriate limit. ACPO will offer the Government whatever support is necessary to facilitate this evaluation.

If so, is the mandatory one year driving ban appropriate for less severe offenders, at the new (lower) level?

2.1 If a lower limit is ultimately introduced, ACPO would urge the Government to resist any pressure to introduce non-disqualification penalties for lower levels of offending. We believe that this would cause unnecessary complications and result in confusing and counter productive messages for the public. There may be a case for a shorter period of disqualification for low-end offenders of six months between 50 and 80.

3 How severe is the problem of drug driving and what should be done to address it?

3.1 There is no hard evidence relating to the scale of the problem of drug driving. Various surveys tend to suggest that a significant number of people have admitted to driving having taken drugs but the number of drug tests

conducted on drivers does not give a significant result.

3.2 There are two reasons for this lack of evidence:

· A blood specimen is not routinely taken following a collision and only in majority of cases resulting in a fatality and then only from the deceased

· The current legislation requires an officer to gather sufficient evidence to prove impairment and then a doctors confirmation of a condition due to a drug before a blood sample may be taken. This is a complex and time-consuming process, which may only be carried out by specially trained officers

3.3 In terms of what should be done to address it: Currently the law requires proof of impairment to drive and proof that the impairment is due to either alcohol or a drug. The effect of this is that it is not an offence to drive with either alcohol or drugs in the body unless the substances are the cause of clear and explainable impairment to drive. This situation creates uncertainty, the user being unsure whether the effects will be sufficient to be determined as impairment to drive or not with many being prepared to take a chance. On the alcohol side, this has largely been addressed by the introduction of a statutory limit in 1967. Other drugs are by nature quite different with statutory limits being impossible to determine with the effect that the 1930 offence of impairment through drugs remains the only control in place. The offence is adequate in addressing the road safety issue but ineffective due to the Act’s procedural process.

3.4 The Act requires that before an evidential specimen of blood or urine can be required from a suspect a medical practitioner has to confirm the presence of a condition due to a drug. The reason for this requirement is a mystery and the effect is serious. In some instances, doctors set the bar for deciding whether there is a condition far too high and fail to find one, many are confused and try proving impairment while in other areas securing the attendance of a doctor at a police station is difficult. This has the effect that during the wait the signs that would indicate the presence of a drug often disappear and a driver is released, as there is no condition found and therefore no futher authority for police to obtain a specimen.

3.5 For these reasons, officer confidence in the usability of the process is often very low with the effect that enforcement is considerably lower than it should be. Officers also frequently lack confidence in their ability to satisfy a court that a person was impaired to drive. Such opinions and decisions are very subjective, often fiercely contested and sometimes lost at court. To combat this officers are trained to carry out field impairment testing (FIT) (previously voluntary but now under section 6 of the Act which involves conducting a series of physical and mental assessments to help to identify and support impairment.

3.6 It is probably fair to say that officers can become disillusioned with what they perceive as barriers that are constantly placed in their way in their efforts to enforce the existing legislation and consequently shift their focus to other, more practically enforceable offences.

3.7 ACPO considers tackling drug driving to be a major issue in improving road safety. We believe that a significant improvement to the current system could be achieved simply by removing the requirement for the FME to confirm a condition due to a drug before the requirement for an evidential blood or urine specimen, especially as this would then mirror the law as it applies to impairment through alcohol. In the short term this can be facilitated in the worse cases by the introduction of drug screening technology (Home Office needs to provide a device specification for type approval of equipment) but as devices are still unreliable at the lower levels and very drug specific this could only help and will not solve the issue.

3.8 Therefore, we believe that firstly, the current legislation is in need of amendment due to the difficulties outlined above and secondly, consideration should also be given to the creation of new offence specifically targeting those drugs that are both illegal and which research has proved cause impairment to such an extent as to impact upon driving. These substances should be listed in a schedule where a person found driving etc whilst under the influence of such a drug would be guilty of an absolute offence – specifically without the additional need to also prove impairment. (This is a very long term solution and there will need to be much research and expert advice but, if we don’t at least alter legislation and start the process we will never achieve the goal).

4 What wider costs and benefits are likely to result from changes to drink and drug driving law?

4.1 This will be clearly dependant on which changes are adopted.

4.2 Reducing the drink drive limit: The benefits will be many and varied. With some 64 lives a year to be saved, along with many serious injuries, there will be a significant reduction in the misery and hurt that comes with bereavement and life-changing injury. There is also the financial cost; the Government’s own figures estimate £1.9 million per fatal collision and £188 thousand per serious collision. A reduction in collisions will obviously mean the police will have to spend less time dealing with them and congestion due to collisions will also be reduced.

4.3 Removal of the statutory option: ACPO strongly supports the removal of the statutory right to a blood or urine test as an alternative to the evidential breath test. Current technology has proven to be highly accurate and effective in its use. It has the confidence of the public and the criminal justice system and can now be relied on without the need for independent corroboration.

4.4 The continued retention of the statutory option simply allows drink drivers the opportunity to forestall the evidential test. This can often result in a reduced reading and in some marginal cases result in drivers avoiding prosecution even though a perfectly valid breath reading was obtained within minutes of a driver being brought to the police station. In addition, police officer time is unnecessarily wasted whilst waiting for doctors or nurses to attend and the process is medically invasive.

4.5 It is also worth considering that the removal of the statutory option for blood or urine would facilitate the introduction of roadside evidential testing which when used in conjunction with targeted checkpoint testing would be a significant enhancement in the options available to the police to tackle drink driving.

4.6 Evidential roadside breath testing: Once the technology is approved, we will fully support the introduction of evidential roadside breath testing. The current system of screening tests followed by an evidential test at the police station introduces a second tier of testing that would be unnecessary if roadside evidential testing was introduced. This would be doubly effective if the statutory option was removed. At present, following a screening test at the roadside, the driver is arrested and taken to a police station. If the custody suite is busy, it may be an hour or more before the prisoner is booked in and provides an evidential breath specimen. Should that come in at 50mg and the driver elect a statutory option, a doctor is called to take a blood sample, which may take another two hours, by which time the driver is below the legal limit, although he or she may have been significantly over the limit at the time they were driving.

4.7 This move will reduce the amount of time it takes an officer to process an offender, as it will remove from the system those who are over at the roadside but subsequently provide a negative evidential test. It will also prevent people who are over the limit at the time they are driving escaping justice when a much later evidential test shows them to be under the limit.

4.8 Unrestricted power to test any person driving a motor vehicle: ACPO wholeheartedly supports the introduction of a power to randomly check any driver. Putting conditions on when a breath test can be required simply supports the view that you can drink, drive and avoid prosecution by playing within the ‘rules’, police have unrestricted powers to stop vehicles to check tyres, condition and the documents of a driver but are restricted when they can check for drink or drugs. A random power would support targeted checkpoint testing of drink drivers carried out now is some areas but requiring an element of consent. Random powers are supported, not necessarily because we believe that the existing powers are inadequate; rather, we believe that this simple measure, widely publicised, would increase the perception in the minds of drivers that if they do drink and drive they are likely to be caught and brought to justice at any time, anywhere.

4.9 We know, from practical experience, that there is a mindset amongst some drivers that if they avoid drawing attention to themselves (e.g. by causing an accident or committing a moving traffic offence) the police have no power to stop them. In truth, the reality is somewhat different. Under current legislation, a police officer can stop any vehicle without reason (using the road traffic act power not those under drink and drug driving) and having subsequently formed an opinion that the driver has been drinking (e.g. because the officer can smell drink) they can then require a breath test. However, many people do not believe that to be the case. In our view, this misconception perpetuates the attitude amongst a resilient hardcore of drink drivers that the risk is one that is worth taking. The message should be clear, don’t drink and drive and if driving you can be tested anywhere, anytime.

4.10 Allowing nurses also to take on the role currently fulfilled by the forensic physician in determining whether the drug driving suspect has ‘a condition which might be due to a drug’: This will have several benefits. In terms of financial savings, there will be a significant saving in not having to call out a Force Medical Examiner (FME) every time a suspect needs assessing. The availability and in many cases the presence of the nurse in the custody suite will mean that officer time is not wasted awaiting the arrival of the FME. Furthermore, the suspect will not evade justice as the impairing effect of the drug wears off prior to the arrival of the FME.

4.11 Steps should be taken for the earliest practicable type approval and supply to police stations of preliminary drug screening devices: if this proposal leads to the removal of any type of examination prior to the taking of a blood specimen then there may be benefits in terms of saving officer time and speeding up the administration of justice. Devices are currently somewhat inaccurate at the lower level but over time they will improve and eliminate many of those cases where the doctors attendance is necessary

4.12 Setting a prescribed limit for drugs: If the level can be scientifically linked to impairment, as is the case with alcohol it would be fair but would not result in any savings in terms of finance or officer time.

4.13 Once preliminary drug screening devices have been type approved for use in police stations, the Government should continue to work on type approval of preliminary drug screening devices which are capable of being used at the roadside, drawing from overseas experience: This will be extremely useful if it is intended to replace the current law that requires the evidence of unfitness to drive (impairment). The FIT assessment takes a minimum of 20 minutes to complete, whether it be positive or negative. It must be clear that as long as the need to prove impairment at the roadside remains, a device such as this would have no value.

4.14 Should it prove beyond scientific reach to set specific levels of deemed impairment, the Government should consider whether a ‘zero tolerance’ offence should be introduced in relation to a schedule of drugs known to have an impairing effect: An absolute offence of driving with a drug known to have an impairing effect would simplify the application of the law at street level. It would remove the need for time-consuming impairment testing and the testing would not have to be carried out by specially trained officers. The time and cost savings due to this would be significant.

5 What would be the implications of such changes for enforcement?

5.1 Whilst it may be argued that a reduction in the drink drive limit may lead to more arrests and prosecutions for drink driving, we anticipate that this would be offset by the reduction in the time spent dealing with collisions caused by drink drivers.

5.2 The full benefit of the legislative changes will only be achieved if the full basket of drink driving proposals is adopted. Removing the statutory option will speed up the process and prevent offenders evading justice. Roadside evidential testing will have a similar effect. Both measures will result in a significant saving in officer time. The introduction of random testing will raise the public perception that they are likely to be detected and will facilitate more effective, targeted testing regimes which should lower the number of drivers prepared to risk capture and prosecution by driving after drinking or taking of drugs.

5.3 In terms of drug driving, the implications are equally positive. Simplification of the application of the law will result in a significant rise in testing by the police as no specialist training would be necessary and the current, unwieldy processes at the police station would be condensed greatly. As such they would be broadly welcomed.

August 2010