Timely advice on the drink driving laws from Jeanette Miller, solicitor

Timely advice on the drink driving laws
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

8 thoughts on “Timely advice on the drink driving laws from Jeanette Miller, solicitor

  1. You say: “….when a suspect is taken to the police station, supposedly more accurate breath testing devices are used…”
    Do you really doubt the accuracy of the ECIR machine?
    Have you successfully challenged the accuracy of one when operated properly? (This aside from the question of the roadside test replacing it).
    It is arguments of this sort (…supposedly more accurate…) which discredit the more point about the roadside/hand-held tests being less accurate which cloud a much better case.
    Further, whatever has ‘Hillsborough’ got to do with the issue? A further ‘point’ of great emotion (amongst some) and of no value to the real discussion at all.

    However, if you are more concerned about a fall-off in business, imagine how many cases will be brought before any new procedure is ‘clarified’ given the usually desperate standard of legislative drafting…
    Best seasonal wishes.

  2. Ahh Tony, what a wee smug man you are. I can picture you now in your old school tie joshing with pals about the great unwashed of Liverpool and how the polis had every right to cover things up with their lies.

    “Amongst some” blew your rather billious rant completely out of the water with great aplomb. Beyond your window is the real world, one that will find you when you are old and alone sitting in your own warm pish.

    Make no mistake old thing, it will find you and it will show the same contempt as you have shown us this day.

    Cheery bye for now.

  3. @Chef: running Hillsborough up the flagpole on each and every occasion regardless of relevance tells one more about the person pulling the string than the quality of the argument.
    An infinitely better point is that the ECIR is (when operated properly) a reliable device. If it needs a complex machine to do that properly, the road-side hand held device can’t be regarded as reliable -can it?
    Oh, and while we are near the point, do you believe that South Yorks Police decided to hold the football match? Or is it a case of any stick is good with which to beat plod?

  4. It’s a pity that Hillsborough ever came into this discussion. Those of us who have followed the Hillsborough story from day one will know that drink was not the cause of that abysmal disaster – as the late Lord Taylor pointed out in his report soon after the event.

    This is an excellent post drawing attention to an important consultation which most of us have probably not even noticed.

    There is probably much to be said for keeping the roadside test as a filter and having the evidential testing done at the Police station. However, if the police station equipment is accurate enough then it is a moot point whether the option of blood/urine should be available in marginal cases. This may be an area where some of the proposed reforms are acceptable and others not. More thought needed.

  5. First: the limit should whatever it needs to be to allow for mouthwash, liqueur chocolates, and internal fermentation, in combination – and no more. Well below 50.

    Second: the penalty should be three years’ disqualification (not one) on a first offence and seven (not three) on a second, and not just within ten years.

    Third: of course the option should be abolished.

    Fourth: driving while disqualified after a drink/drive conviction should carry mandatory imprisonment with no exceptions (not even for a female defendant with more children than the old woman who lived in a shoe).

    But fifth: keep the roadside filter and the evidential test at the station.

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