Jeanette Miller, Senior Partner of Geoffrey Miller Solicitors
With the festive season upon us, the subject of drink driving is more of a hot topic than ever. However, it will probably also be the subject of debate amongst lawyers like me who specialize in drink driving law, due to the imminent closure of a government consultation to change the procedures involved in drink driving cases.
According to the government, we have a significant problem with the drink driving culture in this country. A whole host of (expensive) law changes to remove the “loopholes” that allow so many offenders avoid conviction are being proposed.
There are many issues that are, in my view, cause for concern but perhaps the most serious for the motorist are:
The proposed abolition of Blood or Urine Tests In Borderline Cases (The statutory option)
When arrested for drink driving, motorists are ordinarily taken to a police station to provide an evidential breath sample. Currently the roadside reading taken by the police is not treated as evidence to be used in court but is purely used as a trigger to arrest a driver on suspicion of drink driving.
When at the police station the motorist will usually be asked to provide two further breath tests on a Home Office Type Approved Device and the lower of the two readings at the police station is used in evidence against the driver.
The legal limit in England, Wales and Scotland is presently 35 microgrammes of alcohol in 100 mls of breath which equates to 80mg of alcohol in 100 mls of blood. (Most European countries including Ireland have a lower limit of 50 mg.)
Once the evidential breath test has been performed, if the lower of two readings is above 50 microgrammes, they will simply be charged with the offence of drink driving.
If the lower of the two readings is 39 or less, the police have discretion to allow a suspect to be released without charge.
However, if the reading is 36-50 microgrammes there is currently a legal requirement for the police to offer an option of replacing the breath reading with a blood or urine test.
When the breath test reading is this low it is considered borderline and for the sake of fairness, the suspect can have the option of electing for their breath reading to be replaced by either a blood sample or a urine sample.
The proposals currently being considered would abolish this process. It has been suggested by the government that by allowing the detained motorist the option of a more accurate reading, there is a loophole capable of being exploited in as much as the delay in arranging for a doctor or nurse to get to the police station to take the blood sample often means the suspect has fallen below the limit by the time their blood is taken.
Changing the evidential status of the roadside (preliminary) breath test
Under present law, if a police officer stops a motorist they can only request a breath test be provided in certain circumstances. The roadside sample is a preliminary sample used only for the purpose of establishing if the motorist should be arrested or not. The roadside breath test is often simply a “pass” or “fail” with no numerical value and is currently not used in evidence against a motorist. Instead, the roadside test is the trigger to allow the police to insist on an evidential test being performed at the police station.
However, the proposals seek to suggest that roadside tests be used in place of the police station tests. The government’s justification for this being to cut down the time it takes to transport a suspect to a police station and go through the procedures etc.
Whilst I can see the definite benefits of this from a resources perspective, again, this would, in my view, mean motorists were wide open to miscarriages of justice. When a suspect is taken to the police station, supposedly more accurate breath testing devices are used and there are a number of safeguards in place to protect the motorist. Stringent procedures must be followed in the formal setting of a police station often with CCTV recording the process. In the wake of the Hillsborough scandal, removing this safeguard and allowing officers to conduct evidential tests at the roadside, is a dangerous move.
There are other less controversial proposals relaxing the rules on who can take blood samples from suspects who have been hospitalized and who can perform impairment tests.
Drink Drivers Deserve What’s Coming To Them – Who Cares?
I am sure most people reading this blog will have strong views against motorists convicted of drink driving. Most of my clients share those views and never expect to be over the limit when they are stopped. Investing in education as opposed to slashing the budget for anti-drink driving campaigns would be a far better use of taxpayers’ funds. Streamlining the process will criminalise a significant number of otherwise law abiding motorists – Hardly a real solution in my view.
The government’s consultation is open for responses until 02 January 2013.
Jeanette Miller is the Senior Partner of Geoffrey Miller Solicitors, proudly supporting Charon QC UK Law Tour
