Drink and Drug Driving: Reform the UK's Quirky and Dated System

Summary

Drink and drug driving are on the rise and so are related fatalities and injuries. Other than increasing police budgets to ensure there are sufficient roads policing officers, the government can make many legislative and policy changes to ensure that the upwards trend is reversed. Rather than burying their heads in the sand by falsely saying it is focussing on better enforcement of the current law, the government should:

• Make drink and drug driving laws apply to all vehicles
• Give police powers to administer preliminary tests on any driver on a road or public place
• Introduce better roadside breath testing devices
• Introduce better preliminary drug testing devices
• Lower the drink-drive limit - there's plenty of evidence and public backing supporting this
• Strengthen legislation for failing to provide or cooperate with testing
• Introduce faster and tougher, tier-based minimum disqualification periods
• Introduce mandatory new courses and tough penalties to rehabilitate and prevent reoffending

This is all explained in greater detail in the rest of this post.

Source: http://roadsafetygb.org.uk/news/police-forces-across-the-uk-target-drink-and-drug-drivers/

Introduction

Following up on my post about the legislation governing the use of mobile phones whilst driving being inadequate, this post examines the current legislation and procedures governing drink and drug driving in the UK. 9,040 people were injured in an accident where a driver was over the drink drive limit in 2016 and 230 of those people were killed. This represents a 7% increase on the previous year and is an overall 4 year high after decades of the figure falling year-on-year (source). All this is happening whilst there are significantly fewer Roads Policing officers due to government budget cuts. In 2009, the year before Theresa May started her devastating cuts to the police as Home Secretary, police conducted over 670,000 roadside breath tests. In 2016, this figure was 382,000 - a whopping reduction of 42% (source). Astonishingly, police forces are also struggling to ensure they have sufficient breath testing kits available to them (source). RAC road safety spokesperson Pete Williams quite rightly said: “Police forces clearly need officers to be equipped with breathalyser kits and if this isn’t the case everywhere, then the menace of drink-driving will go unchallenged to the danger of every road user." (source).

Drug driving is also on the rise, with 37 motorists being caught every day - and that's just for cannabis and cocaine (source). These sobering (do excuse me) statistics do little to instil confidence in the government's repeated and naive strategy for reducing drink and drug driving: "better enforcement of the current law". In fact, the government's policy of police budget cuts is making the reverse happen: roadside breath tests have halved, it takes longer to transport a suspect to a non-demolished custody suite to complete the evidential procedure and there are fewer roads policing officers dedicated to catching drink and drug drivers. It is unlikely the full scale of police budget cuts will be reversed anytime soon - but there's still a lot the Department for Transport and the government can do to stop this alarming upwards trend.

Make drink and drug driving laws apply to all vehicles

Currently, drink and drug driving limits only apply to 'motor vehicles' (sections 5 and 5A of the Road Traffic Act). While at first glance this may seem sufficient, this has a number of pitfalls. A 'motor vehicle' is "a mechanically propelled vehicle intended or adapted for use on roads". So, if someone was to (illegally) ride an offroad bike or quad bike on the public road whilst over the drink-drive limit, there would be no point in breathalyzing the driver as they are not subject to the drink drive limit: they are not driving a motor vehicle on the road. In fact, the police do not even have the power to breathalyze such a driver as section 6 of the Road Traffic Act only allows police to breathalyze drivers of motor vehicles in certain situations (more on this later) At best, the police could launch a prosecution under section 4 of the Road Traffic Act for driving whilst unfit through drink or drugs, which applies to all mechanically propelled vehicles. But to do so, the police will have to jump through many hoops to gain sufficient alternative evidence to prove the driver was 'unfit' through either drink or drugs - which is time-consuming and prone to failure in court. 

Source: https://i.telegraph.co.uk/multimedia/archive/02699/off-road-bike-trai_2699516k.jpg

Another common example of a road user to which the full laws do not apply is the pedal cyclist. Pedal cycles are not mechanically propelled vehicles at all, so similarly to offroad vehicles, the drink and drug drive limits do not apply to them and there is no power to breathalyze them. There is an offence of cycling whilst unfit through drink or drugs under section 30 of the Road Traffic Act but similarly to section 4, the police will have to jump through many hoops to gain sufficient alternative evidence to prove the driver was 'unfit' through either drink or drugs - which is time-consuming and prone to failure in court. 

This all makes very little sense - being in control of any vehicle while over the drink or drug driving limit is dangerous, both for yourself as well as other road users. It is currently a major headache for the police to secure a conviction against drunk or drugged road users driving anything other than a 'motor vehicle'. Therefore, all legislation governing drink and drug driving and police testing powers should apply to all mechanically propelled vehicles and pedal cycles.

Give police powers to administer preliminary tests on any driver on a road or public place

The police currently do not always have the power to conduct roadside breathalyzer or drugs tests (these are formally called preliminary tests). This power is governed by section 6 of the Road Traffic Act. Officers are currently only allowed to conduct a preliminary test on any driver of a motor vehicle...

• Whom they reasonably suspect has drunk alcohol or taken drugs, e.g. by their smell, speech, demeanour, intelligence etc.; or
• Whom they reasonably suspect has committed a moving traffic offence; or
• Who has been involved in a road traffic collision.

This greatly hinders police officers who are on dedicated drink/drug-driving checkpoints. Rather than having all passing drivers do a quick breath test and be back on their way within a matter of seconds, officers are now forced to start having a conversation with the driver to see if they can get a reasonable suspicion of impairment. If they can, they have the power to administer preliminary tests, but if they can't, they'll be forced to let the driver go without conducting any testing. Undoubtedly, many people react differently to alcohol and drugs, so someone who is three times the drink-drive limit may show fewer signs of being drunk than someone who is just under the limit. The former may not be tested at the stop site and get away with it, while the latter may be tested but blow under the limit. This is clearly undesirable - potential offenders get away with their crime and police are forced to inefficiently spend time trying to gain a suspicion rather than quickly process preliminary tests.

Officers on some drink/drug drive operations are forced to go as far as using a speed gun to detect drivers who are over the speed limit by as little as 1 MPH. That's not because the officer then wants to report the driver for speeding, but because the officer then has the power to administer preliminary tests (as speeding is a moving traffic offence, giving police the power to do so). These ridiculous and inefficient hoops the police are forced through must be chucked away by the government. 

Source: https://i2-prod.grimsbytelegraph.co.uk/news/grimsby-news/article1705075.ece/ALTERNATES/s615b/blitz1.jpg

This Conservative government has always said it will give the police the powers they need to do their job efficiently and effectively. The police should be given powers to administer preliminary tests on any driver of a mechanically propelled vehicle or pedal cyclist who is driving (or cycling), attempting to drive (or cycle) or is in charge of the vehicle on a road or other public place.

Introduce better roadside breath testing devices

Source: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/image_data/file/75692/s300_960-breathalyser.jpg

The government has confirmed it is promoting companies to develop a roadside breath testing device that is accurate enough to serve as evidence in court. Currently, drivers must be transported to a police station, go through the custody procedure and then complete an evidential breath testing procedure at the police station. This can take a lot of time, sometimes resulting in drivers that were over the limit when driving testing as under the limit at the station. It is a positive development that this evidential procedure can be eliminated and replaced by a roadside procedure. It is vital that this is expedited and legislative amendments for sections 6 and 7 of the Road Traffic Act are drafted as soon as possible to make roadside evidential tests viable.

In the meantime, the Home Office need to approve mobile evidential breath testing vans and devices as a matter of priority. Their use was legislated for years ago, but police are unable to use mobile drink driving vans because they simply haven't been type approved.

Introduce better preliminary drug testing devices

Source: https://www.lilltech.no/users/lilltech_mystore_no/images/52232_Securetec_Saliva_drug_test__DrugWipe__S_1.jpg

Currently, the preliminary drug testing devices that are routinely used by police are the DrugWipe 3S and the Draeger DrugTest 5000. These devices have been type-approved by the Home Office (a requirement for them to be used). A major issue with these two devices is that they can only detect cannabis and cocaine. The Drug Driving (Specified Limits) (England and Wales) Regulations 2014 prescribe limits for many more controlled drugs. The fact that the preliminary test is limited to just 2 of these is alarming as drivers who are under the influence of other drugs face a far lower chance of getting caught. While they will obviously still show up in the evidential blood test, there is a far lower likelihood of this blood test ever being conducted as they won't show up on the preliminary test.

A simple solution for this is for the Home Office to type-approve the DrugWipe 6S. This new device can detect more drugs and according to the manufacturer is more sensitive and reliable than ever before. It can detect cannabis, amphetamines, methamphetamines, ketamine, cocaine and opiates (morphine, heroin). It is clearly desirable that this device replaces the now outdated DrugWipe 3S as part of Roads Policing equipment. I anticipate a great further jump of drug drivers being caught if this device is introduced, which in turn will reduce collisions caused by drug drivers and improve road safety. No new legislation is required for this, the Home Office only needs to type-approve the new device.

According to the manufacturer, the Draeger DrugTest 5000 is already capable of detecting amphetamines, benzodiazepines, THC (cannabis), cocaine, methamphetamines, opiates (morphine, heroin), methadone and ketamine. However, the Home Office type approval extends only to its use for the detection of cannabis and cocaine. The Home Office should conduct further testing to determine its suitability for the other substances it can detect and type-approve it accordingly, or request the manufacturer to produce a better device that can meet the required accuracy.

To conclude, a major enforcement opportunity is being missed for drug driving by limiting preliminary detection devices to detect only cannabis and cocaine. Newly developed devices should be type approved as fast as possible to enable the detection of many other controlled drugs that have a limit for drivers under section 5A of the Road Traffic Act.

Lower the drink-drive limit - there's plenty of evidence and public backing supporting this

The UK (excluding Scotland and soon, Northern Ireland) has one of the highest drink-drive limits in Europe and indeed in the world: 35 microgrammes of alcohol in 100 millilitres of breath or 80 milligrammes of alcohol per 100 millilitres of blood (BAC of 0.08%). In 2001, the European Commission said the limit should be cut to 50mg in 100 ml of blood, or 22 microgrammes of alcohol in 100 millilitres of breath (BAC of 0.05%), citing new safety research. Most European countries adopted this lower limit, but the UK failed to do so. 

The UK's current limit was set in 1967 and this was based on research over data spanning a 1 year period in Grand Rapids, Michigan, which showed the risk of a collision of any kind being roughly doubled at that level. However, many studies have shown that drink driving is far riskier than the Michigan study suggested. According to the BBC, a 2014 US study that looked at fatal collision data over a 3 year period indicated that "a driver was 13 times more likely to be involved in a fatal collision if they were above the 80mg/100ml limit. Even at the 50mg/100ml level, you were still five times more likely to have a fatal collision."  Interestingly, it also shows that driving whilst under the influence of cannabis is potentially far less likely to result in a fatal collision than driving with an alcohol level of 50mg/100ml (0.05% BAC), which is currently not illegal in the UK.

With the newly available evidence,  Prof Allsop says: "I'm sure we should lower the limit - down to 50mg/100ml at first, then perhaps after a time down to 20mg/100ml, which is what they have in Sweden." He also points out that the currently rising drink-drive related deaths do not include cases where a driver had been drinking but was not over the current limit. He estimates that there are an additional 60 deaths related to such cases.

The Department for Transport, however, has chosen to stick its head in the sand for reasons unknown, but I suspect lobbying by the alcohol industry is playing a major role. It said to the BBC: "Drink driving is completely unacceptable, which is why there are tough penalties and rigorous enforcement in place for those who do this. The government currently has no immediate plans to lower the drink-drive limit. However, we keep this policy area under constant review and will always welcome robust and accurate evidence on this subject." It has the nerve to say all this despite enforcement being considerably reduced over the years (see above) and there being a plethora of evidence indicating the lower limit of 50mg/100ml blood is far safer than the current 80mg/100ml. There is strong public support amongst drivers for lowering the limit and it was also recommended following a government-initiated independent enquiry led by Sir Peter North QC. This enquiry also recommended a review of a further reduction of the limit to 20mg/100ml blood for new, unlicenced, HGV, PSV, taxi and private hire drivers. Many countries currently have such a system in place. Such a system was also recommended by an independent Road Safety management Capacity Review, commissioned by the DfT and carried out by Systra. I personally would support a system that imposes a lower limit for these drivers as they instil a more firm zero-tolerance approach for these higher-risk drivers, and Northern Ireland already has legislation on the statute books that implements such a system, showing it can be done within UK law. In Systra's review, the DfT was again absolutely slammed for not taking action to lower the drink-drive limit to the level recommended by the World Health Organization. 

To conclude, for the Department for Transport to say it needs more evidence that a lower drink-drive limit is appropriate and that it is focusing on rigorous enforcement is an absolute joke. There is plenty of evidence available and enforcement is stalling significantly. The DfT must immediately lower the drink-drive limit to 22 microgrammes of alcohol in 100 millilitres of breath (or 50mg/100ml blood, 0.05% BAC). For new, unlicenced, HGV, PSV, taxi and private hire drivers, a lower limit of 9 microgrammes of alcohol in 100 millilitres of breath (or 20mg/100ml blood, 0.02% BAC) should apply.

Strengthen legislation for failing to provide or cooperate with testing

Currently, failing to cooperate with a preliminary test (at the roadside) carries 4 penalty points, a level 3 fine on the standard scale and no obligatory disqualification period (section 6 RTA). Failing to provide a specimen for analysis (at the police station) carries an obligatory disqualification of at least 12 months and a level 5 fine on the standard scale (section 7 RTA). 

Further dated legislation, however, states that the police can only arrest someone for failing to cooperate with a preliminary test if they reasonably suspect that the driver has alcohol or drugs in their system. Although I believe this is now somewhat negated by PACE Code G, it is still quite absurd - if the police breath test me because of a moving traffic offence and I refuse, according to the old legislation, they can't arrest me unless they reasonably suspect I have alcohol in my system. Therefore, I could technically get away with only 4 penalty points as the police would not have the opportunity to take me to a police station for the purpose of providing a specimen for analysis, thereby avoiding a mandatory disqualification.

This is clearly an undesirable situation and again creates many hoops for the police to jump through. The government should make the two different offences both carry exactly the same penalty: a minimum disqualification period of 36 months, a level 5 fine on the standard scale and up to 6 months in prison (see below also). The power of arrest for failing to cooperate under section 6D of the Road Traffic Act should no longer be conditional on the police suspecting alcohol or drugs, but merely on whether the suspect fails to cooperate with the preliminary test. From this point on in this post, if I refer to an offence of failing to provide, this should be taken as either an offence of failing to cooperate with a preliminary test (section 6) or failing to provide a specimen for analysis (section 7).

Introduce faster and tougher, tier-based minimum disqualification periods

The government should introduce tier-based minimum disqualification periods, like Northern Ireland is doing. Currently, anyone caught drink-driving for the first time faces a minimum disqualification of 12 months, regardless of how far over the limit they were. The 12 months should progressively increase the further someone is over the limit. For example, the following system could be legislated for:

For repeat offenders within 10 years, the minimum obligatory disqualification periods shown in the table above should be increased with 24 months. For those convicted of failing to provide a specimen, the maximum penalties apply, i.e. those for 120 microgrammes of alcohol per 100ml of breath or above.

A similar system should be introduced for controlled drugs, but I will not create a table showing a sensible starting point for the disqualification tiers due to how many different drug types and limits there are.

For drink and drug driving, disqualification should start as soon as possible. The government should consider introducing immediate, interim 'police' disqualification upon charge for section 5 and 5A Road Traffic Act offences where the offender was driving the vehicle and the necessary evidence is available. This period should be taken into account when sentencing at court (i.e. disqualification imposed by magistrates is reduced by the length of the interim disqualification).

To ensure accuracy and fairness and help prevent defences based on equipment accuracy in court, a procedural or statutory reduction in favour of the offender should be applied to all readings taken from evidential tests. This could be 3 microgrammes of alcohol per 100ml of breath and 7 mg of alcohol per 100ml of blood. For example, if the evidential test shows a reading of 39 microgrammes of alcohol per 100ml of blood, a reduction of 3 is applied and the suspect charged with driving with excess alcohol a 36 microgrammes of alcohol per 100ml of blood. This reduction accounts for any potential inaccuracy present in the evidential equipment and in my eyes is vital if immediate 'police' disqualifications are introduced.

Note that, for offences committed on pedal cycles, no disqualification should apply.

Introduce mandatory new courses and tough penalties to rehabilitate and prevent reoffending

The government should introduce further consequences to drink and drug driving. There are currently 'drink drive rehabilitation courses' available to convicted offenders which, if completed, reduce the period of disqualification. This system should be changed. The government should introduce both drink and drug driving rehabilitation courses. They should become mandatory for all drink and drug driving and failing to provide offenders to complete, at their own cost. They should complete one (or both) of these courses starting from the last 2 months of their disqualification. To get their licence back, convicted offenders must have satisfactorily completed such a course and paid for it themselves. Until such time, they remain a disqualified driver and they will not be able to re-apply for their driving licence.

For repeat offenders within 10 years, offenders with a reading of at least 76 microgrammes of alcohol per 100ml of breath and failing to provide offenders, an alcohol interlock system should become mandatory after disqualification ends. Offenders must not drive any vehicle without an approved alcohol interlock system correctly fitted to it. Offenders must pay for it to be fitted at their own cost. Specified offenders are subject to this restriction for 3 years after they regain their licence after their disqualification ends. The alcohol interlock system ensures the vehicle cannot be started if the driver has alcohol in their system and requires breath samples to be given every 30 minutes while driving. If it is maliciously interfered with or isn't correctly fitted to a vehicle being driven by such an offender, this should be classed as a separate offence which carries a fine not exceeding level 5 on the standard scale and a minimum disqualification of 12 months. A vehicle seizure power should exist for this offence. Going further than this, recent RAC research suggests 9 in 10 of UK drivers would support such devices to be installed in all cars.

Source: https://i2.wp.com/www.licenserestoration.com/wp-content/uploads/2018/06/Ignition-Interlock-blow-and-go-lg.jpg?fit=600%2C400&ssl=1

Mandatory drink/drug driving rehabilitation courses for all offenders and alcohol interlock devices for high-risk offenders significantly reduce the chances of people reoffending. Because they must be taken or installed at their own cost, it is a cost-effective way for the government to help drive down such offences; in the long run, this can thus help save court time as well as reduce collisions and deaths and injuries on the roads.

Comments, thoughts, praise and criticism are all very welcome and I will happily engage in polite discussion if any interesting points are raised. See you in the next post!

-Albo1125