PENALTIES
35. The law in the United
Kingdom prescribes a minimum period of 12 months disqualification
for a first drink driving offence[12],
and of three years for any subsequent offence of that kind within
10 years[13].
The current maximum penalties for a drink driving offence are
six months imprisonment and a fine of £5,000. The courts
have wide discretion as to the level of fines and prison sentences.
In England and Wales, the Magistrates' Association issue Sentencing
Guidelines for magistrates[14].
These guidelines suggest an increasing level of fine and period
of disqualification with increasing BAC. Furthermore, they suggest
that magistrates consider community service penalties for offences
above 196mg/100ml and custody for offences above 265mg/100ml.
36. Across other Member
States, penalties for driving with a BAC above the permitted level
vary widely. Sweden has among the harshest penalties. For an offence
involving a BAC above 100mg/100ml, "gross drunk driving",
the maximum penalty is a two year prison sentence or electronic
surveillance, rising to a maximum of six years if the offence
involves injury or death or is a second offence (QQ 348-359).
In Belgium, however, the penalty for driving with a BAC between
50mg and 80mg/100ml is suspension from driving for three hours.
"It is a sort of `sin bin' approach" (Q 7).
Penalties for
offences within the 50-80mg/100ml range
37. The Institute of
Alcohol Studies (IAS) considered that the severe penalties currently
imposed in Britain on conviction is one of the reasons for the
success of the anti drink driving campaign (p 113). The Association
of Chief Police Officers (ACPO) suggested that the current minimum
penalties should continue to apply even if the permitted BAC were
lowered to 50mg/100ml (Q 70). The Automobile Association
(AA) reported that their members shared ACPO's view (p 103).
38. Other witnesses
proposed a shorter period of licence disqualification. IAS recognised
that penalties should have public acceptance and be perceived
by them as proportional to the offence and considered that this
would "clearly be less out of step with existing and planned
regimes in other EU countries" (p 114). The Campaign
Against Drinking and Driving (CADD) suggested a sliding scale
starting at nine months disqualification (p 110). The Portman
Group suggested that maintaining the same penalties for a lower
limit risked "a public backlash" and cited evidence
from Scandinavia where lower limits were at first linked to draconian
penalties which had to be reduced in order to achieve proportionality
with other offences (pp 117-8).
Tiered limits
with differing penalties
39. Mr Laurell stated
that Sweden operates a two-tier system of "drunk driving"
at 20mg/100ml and "gross drunk driving" at 100mg/100ml,
with harsher penalties for the latter offence (QQ 348-359).
Dr Nickel, Director, Medical-Psychological Institute, TÜV
Munich, Germany, described the three-tiered system currently operating
in Germany: an overall valid limit of 30mg/100ml[15];
an 80mg/100ml limit with administrative penalties; and a higher
limit of 110mg/100ml with criminal penalties (QQ 400-409).
Tiered systems also operate in France, Belgium and Greece (Q 291).
The Minister said, however, that there is no question of the Government
advocating or proposing a two-tier system of penalties (Q 261).
Superintendent Rowe suggested that a tiered penalty system would
devalue the seriousness associated with this type of criminal
offence (Q 222).
Vehicle forfeiture
40. ACPO suggested that
the wider use of existing powers of vehicle seizure and disposal
would provide a "very effective deterrent" (Q 67).
Superintendent Rowe was in favour of greater use of vehicle forfeiture
for high level and repeat offenders (Q 237).
Breath Alcohol
Ignition Interlock Devices (BAIIDs)
41. Several witnesses
raised the issue of BAIIDs in the context of penalties (QQ 40,
243). BAIIDs are devices fitted to a vehicle which require the
driver to provide a sample of breath containing a level of alcohol
below a pre-set limit before the vehicle may be started. In some
jurisdictions, largely in North America, offenders are required
to have them fitted to their vehicle for a prescribed period as
a condition of the return of their driving licence.
High Risk Offenders
42. The High Risk Offender
(HRO) Scheme was first introduced in May 1983 to cover drivers
convicted twice within ten years of either having a BAC in excess
of 200mg/100ml and or refusing without reasonable excuse to provide
an evidential specimen. In 1990, the criteria were widened to
cover drivers who were convicted of: having a BAC in excess of
200mg/100ml; refusing without reasonable excuse to provide an
evidential specimen; or two offences involving BACs in excess
of 80mg/100ml within a ten year period. To regain their licences
at the end of their period of disqualification, HROs must undergo
a medical assessment to demonstrate with reasonable certainty
that they are not alcohol abusers.
43. Dr Major, Medical
Adviser, Driver and Vehicle Licensing Agency (DVLA), reported
that in 1995, about 35 per cent of drink driving offenders in
Great Britain were classed as HROs. There are at any one time
approximately 85,000 disqualified drivers within the HRO scheme.
About 33,000 drivers reach the end of their HRO disqualification
period each year and a similar number join the scheme (Q 172).
To regain their licence, drivers with a clear history of alcohol
dependency must show a one-year period free of alcohol-related
problems. Drivers who are clearly problem drinkers, but not alcohol
dependent, must show evidence of at least six months moderated
intake (Q 173). In 1996-97, only three per cent of applicants
were refused a licence after HRO assessment because of evidence
of persistent alcohol misuse or dependency and seven per cent
were issued with a licence subject to regular review. The remaining
90 per cent were reissued with a licence to the age of 70 (QQ 172-4).
44. Dr Major described
some of the problems associated with the HRO Scheme. Offenders
are warned on what date they are to be medically assessed and
therefore have time to modify their drinking habits. The DVLA,
when considering applications for the restoration of the licence,
needs to have a "very robust level of diagnosis" which
will stand up to examination in court[16].
As a result, Dr Major considered that more HROs should have had
their licence refused or at least restricted (Q 174). "We
are fairly sure that we are missing a lot of people." Between
two and five per cent of HRO drivers are "slipping through
the net". Dr Major also suggested that the effectiveness
of the HRO Scheme could be improved by doing the assessment at
a different time-nearer to the index event-and over a period of
time so that a trend in drinking habits could be established (QQ 172-179).
45. DETR admitted that
the problem with the HRO Scheme is that "we have not addressed
our minds recently to what we are really trying to achieve".
The options include trying to screen out drivers who are medically
unfit to drive or those who habitually drink too much and then
drive. The relationship between the HRO Scheme and the Rehabilitation
Scheme[17]
requires further thought (Q 262). There is a need to develop
measures aimed at people who have an alcohol problem and then
drive (Q 12).
46. The Minister stated
that about half of the 90,000 people convicted annually for drink
driving had a BAC over 150mg/100ml (Q 271). IAS suggested
that if the legal limit were reduced to 50mg/100ml one option
would be "to require all drivers above 80mg/100ml to undergo
some form of medical screening and/or to attend (at their own
expense) a drink drive education programme before their driving
licence is returned" (p 114). Dr Major pointed out that
a lowering of the HRO threshold would pose a problem for DVLA
because of the likelihood of an increased number of cases (Q 182).
HRO schemes in
other jurisdictions
47. Commissioner Kinnock
said that there were few schemes similar to the HRO Scheme operating
in Member States (Q 306). Mr Laurell explained that, in Sweden,
offenders with a BAC above 100mg/100ml are required to undertake
a relicensing assessment for alcohol dependency involving a series
of consultations over three to six months with a specialist physician
or psychiatrist (Q 361). If the results of the consultations
are acceptable, then the driver will be given a conditional licence
valid for 18 months during which further consultations must take
place to ensure that no relapse has occurred (Q 363).
48. Dr Nickel explained
that under the German system of Medical-Psychological Assessment,
offenders with a BAC at or above 160mg/100ml or offenders who
commit two drink driving offences with BACs above 80mg/100ml within
10 years are required to undergo an assessment prior to reapplying
for their licence (Q 417)[18].
The assessment, which lasts three to four hours, is undertaken
jointly by a doctor and a psychologist. It costs the offender
DM600-750 (approximately £200-250). The offender decides
whether or not to submit the report of the assessment to the authorities
and apply for his licence (Q 419).
49. Dr Nickel noted
that only 28 per cent of those assessed were considered eligible
for licence reinstatement without treatment; 31 per cent were
considered eligible to join an alcohol treatment programme; and
the remainder were adjudged negative (Q 424). Recidivism
rates for drivers adjudged negative was about twice that for the
other two groups (p 98).
50. Dr Major reported
that, in 1996-97, some 14 per cent of drivers eligible to reapply
for their licence did not do so (Q 172). In Sweden between
30 and 40 per cent of drivers who lose their licence for drunk
driving never reapply for their licence and therefore do not undertake
the relicensing assessment (Q 368). Mr Laurell commented
that it is "safe to assume that most of them drive sometimes
anyway" (Q 368).
ENFORCEMENT
51. Police powers to
enforce drink driving legislation vary widely between jurisdictions.
In the United Kingdom and Germany, for example, the police officer
must have "reasonable suspicion" that the driver has
been drinking before requiring a breath test. In other jurisdictions
random breath testing[19]
(used in most Australian States) and road blocks[20]
(used in France and elsewhere) provide the police with the ability
to breath test drivers without prior suspicion but under "controlled
conditions". All jurisdictions that currently have a legal
limit at or below 50mg/100ml give their police much greater overt
powers to stop and breath test drivers than are currently available
to British police[21].
52. The Royal Automobile
Club (RAC) proposed that a "`new' power be introduced to
enable an Officer in uniform to stop any vehicle at random and
thereafter breath test the driver" (p 120). Superintendent
Rowe further suggested that enshrining in legislation the case
law established by Chief Constable of Gwent v Dash[22]
would clarify the considerable confusion surrounding existing
police powers and procedures (QQ 209-210). The Minister,
however, did not consider confusion over police powers to be a
major problem. Under current legislation, the police manage to
decide "fairly easily" whether a breath test would be
justified (Q 258).
Random Breath
Testing (RBT)
53. The Parliamentary
Advisory Council for Transport Safety (PACTS), "a long-time
supporter of RBT", proposed that a general power be made
available to the police to stop and breathalyse drivers, supported
by guidance from the Home Office (p 22). The BMA felt that
the police required extra powers and that their personal preference
was for RBT (Q 102). The key issue, however, is which method
would be most likely to pick up the persistent drink drive offender
(Q 106).
54. ACPO stated that
they were not seeking RBT (Q 47). Superintendent Rowe said
that the police do not want and, in his view, do not need RBT
(Q 207). The Home Office viewed RBT as a broad and blunt
weapon that may not necessarily be the best use of scarce resources
(Q 31).
Unfettered discretion[23]
to breathalyse
55. Both the Royal Society
for the Prevention of Accidents (RoSPA) and CADD supported the
introduction of unfettered discretion which they considered would
be more effective than RBT (Q 116, p 109). ACPO would like
to see a general provision for police officers to be able to administer
a breath test unfettered by the current restrictions enabling
them to target specific locations which intelligence had shown
to be associated with drink drivers (QQ 46, 48). This
would ensure the more effective and efficient use of current resources
and would have a "dramatic effect" on the number of
road collisions (Q 56).
Evidential roadside
breath testing
56. Evidential breath
testing was introduced in Great Britain in 1983. As a result,
the number of roadside screening tests increased substantially.
Superintendent Rowe suggested that the new generation of evidential
breath testing equipment should be deployed with the aim of "moving
away, not entirely, from testing in the police station to evidential
testing at the roadside." This equipment could be available
in the very near future (QQ 212, 215). ACPO stated that
evidential roadside testing would result in considerable resource
savings and thereby increase effectiveness (Q 84).
Need for public
acceptance
57. The Home Office
stressed that "enforcement is not just about catching offenders.
It is part of a package to try and get compliance from members
of the public" (Q 23). DETR suggested that a balance
must be struck between harsh enforcement and commanding public
support. If it is too harsh, there will be a public reaction to
it (Q 28). RoSPA said that the public need to be made aware
of any extra powers given to the police (Q 127).
Police priorities
58. Several witnesses
proposed that road safety should be made a national police priority
(p 120, QQ 86, 97). "To put the matter starkly,
for every one person murdered, six are killed on our roads"
(PACTS, p 22).
Enforcing a lower
limit
59. IAS cited research
findings from the United States showing the difficulties of detecting
drivers with low BACs simply by observation. If a drinking driver
is not tested, then they will "learn exactly the wrong lesson-that
they can `get away with it'" (p 113). "A low legal
limit which is not adequately enforced is likely to be less effective
in reducing casualties than a higher limit that is effectively
enforced" (p 112).
8 Department of the Environment, Transport and the
Regions (1997). Road Accidents Great Britain 1996: The Casualty
Report. London: TSO. Back
9 Department
of the Environment, Transport and the Regions (1998). Combating
Drink Driving: Next Steps-A Consultation Paper. London: TSO. Back
10 Broughton
J, Markey K A and Rowe D (1996). A new system for recording
contributory factors in road accidents. TRL Unpublished Project
Report PR/SE229/96. Back
11 Belgian
Toxicology and Trauma Study, 1995-96. Back
12 By
drink driving offence, the Committee means the offence of driving
or attempting to drive when unfit to drive through drink and driving
or attempting to drive with excess alcohol in breath, blood or
urine (Road Traffic Act 1988 Sections 4(1) and 5(1)(a) respectively).
There are other drink related offences, including sections 3A,
4(2), 5(1)(b), 6 and 7. Back
13 Road
Traffic Offenders Act 1988. That Act gives courts a limited discretion
for "special reasons" not to disqualify a person or
to impose a lesser period but in practice they rarely do this. Back
14 The
Magistrates' Association (1997). Sentencing guidelines. London:
TMA. Back
15 The
30mg/100ml limit applies in the event of an accident causing damage
of over DM3,000 or in the event of the injury or fatality of another
driver (Q 406). Back
16 Road
Traffic Act 1988, section 92. The DVLA must show evidence of a
relevant disability before refusing to restore the licence to
the HRO. Back
17 Rehabilitation
courses have been operating experimentally since 1993. The courses
focus on the need to separate drinking from driving. Early indications
of its success have prompted the Government to extend the scheme. Back
18 Refusing
to provide an evidential specimen is not an offence in Germany
as the police have the power to obtain a blood sample by force
if necessary (Q 398). Back
19 Under
random breath testing, drivers are, in theory at least, selected
in a random or quasi-random fashion from the traffic stream and
all drivers selected are tested. The word random,
therefore, relates only to the selection of drivers from the passing
traffic. It does not refer to the location of the checkpoint or
to the time of day or day of week when it is held. Back
20 With
road blocks, the police tend to pre-select drivers from the traffic
stream (for example on the basis of their behaviour, the condition
of the vehicle, the age of the driver). Not all selected drivers
may be breath tested. Back
21 Clayton,
A B (1997). Which way forward? London: The Portman Group. Back
22
Chief Constable of Gwent v Dash
[1986] RTR 41, [1985] Crim LR 674, on appeal held that the random
stopping of a driver to ascertain whether it is justifiable to
administer a breath test does not amount to malpractice unless
the police action is oppressive, capricious or opprobrious. Back
23 Unfettered
discretion would mean that a police officer might require a driver
to provide a breath test on a road at any time. Back
