North Review Report

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Report of the Review of

Drink and Drug Driving Law

Sir Peter North CBE QC

June 2010


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Report of the Review of

Drink and Drug Driving LawSir Peter North CBE QC

June 2010


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Although this report was commissioned by the Department or Transport (DT), the fndings andrecommendations are those o the author and do not necessarily represent the views o the DT. Whilethe DT has made every eort to ensure the inormation in this document is accurate, DT does notguarantee the accuracy, completeness or useulness o that inormation; and it cannot accept liabilityor any loss or damages o any kind resulting rom reliance on the inormation or guidance thisdocument contains.

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ContentsExecutive summary 5

List of recommendations 15

Part I: Introduction

Chapter 1 Background to the Review 22

Part II: Drink driving

Chapter 2 Law and procedure 30

Introduction

Legislative historyThe current lawOther procedural issuesThe current penalty regime or drink driving oences

Chapter 3 Evidence, issues and opinion 55

IntroductionCurrent statisticsResearch fndingsApplications and implications o scienceIssues and opinions

Chapter 4 Recommendations and conclusions 91

IntroductionInterventionsThe prescribed blood alcohol limitPenalties or drink driving oencesPolice enorcement o drink drive law

Part III: Drug driving

Chapter 5 Law and procedure 120

Legislative historyThe current lawOther procedural issuesThe current penalty regime or drug driving oences

Chapter 6 Evidence, issues and opinion 133

IntroductionCategorising drugsSources o inormationUnderstanding the basis o drug eects on sae drivingperormance

MedicinesOther procedural issuesIssues and opinions

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Chapter 7 Recommendations and conclusions 167Evidence o the problemCurrent law and processImproving the law and process: the road map

High risk oender schemeDrug driver rehabilitation coursesMedicines and medical adviceDrugs and drink in combination

List of abbreviations 185

Annexes

Annex A Consultation questions 188

Annex B Organisations and individuals who submitted 191

written representation and evidence

Annex C Organisations and individuals who gave oral 194evidence to the Review

Annex D Visits 196

Annex E Other sources o inormation 197

Annex F Research evidence 199

Annex G Relevant statutory provisions 203

Annex H Penalties or drink and drug driving oences 256under the Road Trac Act 1988

Annex I Sentencing Council Magistrates Court 257Sentencing Guidelines

Annex J Magistrates Court Sentencing Guidelines fne bands 266

Annex K The presentation o drink drive statistics 267

Annex L Breath tests or alcohol by country 269

Annex M Code o Practice or Preliminary Impairment Tests 270

Annex N Police Forms: MG DD/E orm and MG DD/F orm 279

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6

Improving the evidence

Whilst the annual figures of road deaths due to drink driving are a reliableestimate, they are not an exact actual figure. Steps should be taken toimprove the completeness of the actual figures which are available by

requiring coroners (and procurators fiscal) to report all results of bloodalcohol levels of drink driver fatalities.

The alcohol limit

There is very considerable public support for a reduction in the current drinkdrive limit, commonly expressed as 80 milligrammes (mg) of alcohol per100 millilitres (ml) of blood (shortened to 80 mg/100 ml and equivalent to35 microgrammes of alcohol in 100 ml of breath). That support is clear fromthe evidence to the Review, both written and oral. Furthermore, a reductionwould be consistent with the approach adopted by a large majority ofcountries in the EU. Research evidence consistently demonstrates thatthe risk of having an accident increases exponentially as more alcohol isconsumed. Drivers with a blood alcohol concentration (BAC) of between 20mg/100 ml and 50 mg/100 ml have at least a three times greater risk of dyingin a vehicle crash than those drivers who have no alcohol in their blood. Thisrisk increases to at least six times with a BAC between 50 mg/100 ml and80 mg/100 ml, and to 11 times with a BAC between 80 mg/100 ml and 100mg/100 ml.

There is a case for a reduction to 20 mg/100 ml which would be whollyconsistent with a policy of Do not drink and drive. However, only a smallminority of other countries have such a zero tolerance approach. It wouldseem to be a step too far in this country, at this time, risking the loss ofpublic support for strengthening our drink drive legislation.

A reduction to 50 mg/100 ml would undoubtedly save a significant numberof lives. In the first year post-implementation, estimates range from atleast 43 to around 168 lives saved as well as avoiding a larger numberof serious injuries a conservative estimate is 280. At the other end of therange, avoiding as many as almost 16,000 injuries (including slight andserious) has been modelled. It is estimated that the impact of any loweringin the blood alcohol limit will actually increase over the first few years ofimplementation with an estimate of up to 303 lives annually saved by the6th year. These figures do not fully reflect the additional lives that might besaved in Scotland who make up 7% of the drink drive-related casualties inGreat Britain. While there are many uncertainties related to the data and theassumptions used in the modelling, nevertheless, they provide a helpfulindication of what might be achieved by a reduction in the current limit. Inthe light of that, the current 80 mg/100 ml should be reduced to 50 mg/100 ml.

The issue of whether to have a lower alcohol limit for young or novice driversis the most difficult addressed in the Review. Most novice drivers are young,and there is currently a separate penalty point regime for such drivers. Itis clear from the drink drive statistics that younger drink drivers create aconsiderably greater risk than average, both to themselves and to others. Itappears that that elevated risk extends to drivers up to the age of 30 but itdoes not appear proportionate to apply a stricter regime to all drivers for a

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Executive summary

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dozen years from gaining a licence. Given the high risk, there is, nevertheless,a strong case for a lower limit for the first five years of driving.

There are, however, real policing difficulties with an age related provision,since licences are not required to be carried by drivers. Singling out novice

drivers fails to address the issue that the most problematic group of youngdrivers are those in their mid twenties. Furthermore, it does not seem wiseto have an age or experience related provision which, in effect, says that youare allowed to drink more and drive once you have passed the appropriateage limit or period since passing your driving test. The evidence from aroundthe world also suggests that the young, and young men in particular, arelikely to be the demographic group which benefits most from any reductionin the general blood alcohol limit.

It therefore appears sensible to see what impact a general change in thelimit to 50 mg/100 ml has on drink driving casualties associated with this

group before deciding whether to move to set a limit specifically for them.The case for a 20 mg/100 ml limit for the first 5 years of driving shouldtherefore be reviewed 5 years after implementation of the new 50 mg/100ml limit, on the basis of the trend in the relative risk posed by young drivers.

The impact on industry

Concern was expressed by some representatives of the drink and hospitalityindustry, in evidence to the Review, that lowering the limit to 50 mg/100 mlwould have adverse consequences on their industry, not least in relation torural pubs and restaurants. Also recent press coverage has suggested that

lowering the limit would mean that drinking and driving would equate to alimit of less than one pint of beer or one glass of wine. These two matters areconnected. The press coverage was exaggerated. It would appear that, evenat a 50 mg/100 ml level, the responsible driver who wishes to enjoy a drinkto accompany their pub meal or have a glass of wine or a pint of beer coulddo so without being in danger of breaking the law. Whether that would bewise, given the evidence of impairment at even low levels of blood alcohol,is another matter. The hospitality industry could do more to protect itself,evidence to the Review made clear, by for example more generally adoptingand promoting the designated driver schemes and by giving attention tothe high cost of non-alcoholic drinks.

Appropriate penalties

Reduction in the limit to 50 mg/100 ml requires consideration of theappropriate penalties to be imposed at and above that level, particularlythe penalty of a mandatory minimum period of disqualification. Variousapproaches can be canvassed, and have been in the evidence to the Review:keep the present 12 months mandatory disqualification at 50 mg/100 ml;impose 6 months minimum mandatory disqualification at 50 mg/100 ml,rising to 12 months at 80 mg/100 ml; have a mandatory 6 penalty points anddiscretionary disqualification at 50 mg/100 ml, with 12 months mandatory

disqualification at 80 mg/100 ml or upon conviction for a second offenceabove 50 mg/100 ml. The weight of evidence favours the first approach; butthat would mean that Great Britain had the toughest penalty regime of any


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EU country with a 50 mg/100 ml limit. It must be recognised, however, thatthe threat o a substantial period o mandatory disqualiication has provedto be a potent weapon in combating drink driving. It would be a retrogradestep to diminish the orce o that weapon, with the conclusion that, inaddition to the current band C ine, 12 months mandatory disqualiicationshould continue to be imposed i the limit is reduced to 50 mg/100 ml.

There are particular concerns over high risk oenders (HROs), a categorywhich includes those who have a blood alcohol level more than 2 timesthe legal limit (i.e. over 200 mg/100 ml), those who reuse a breath test andrepeat drink drive oenders. Those drivers whose BAC is greater than 200mg/100 ml have over 500 times the risk o dying in a road accident thani they had not drank any alcohol. There are some 40,000 such oenderseach year. A number o issues need to be addressed. First, HROs are subjectto lengthy periods o disqualiication and are required to satisy a DVLAdoctor o their itness to have their licence restored. At the moment theycan resume driving beore they have been cleared by a doctor. This loopholeneeds to be closed without delay. Secondly, i the BAC limit is reduced to 50mg/100 ml, there is a case or the threshold or the very high blood alcohollevel which determines one section o HROs to be reduced proportionatelyto 125 mg/100 ml (where the risk o dying in a road accident is still almost50 times the risk o a driver without alcohol), and the Sentencing Councilshould give this, and other issues associated with the escalation o penaltiesor HROs, close consideration. (Similar provision should be made in Scotlandby any new equivalent Scottish body.) Thirdly, there are powers in England,Wales and Scotland or courts to order the oreiture o vehicles involved in

drink driving cases. There is recent experience in Scotland o eective use othese powers; and courts should, as a matter o routine, consider the exerciseo such powers in the case o serious repeat oenders. Fourthly, in suchserious cases, consideration should also be given by the courts to orderingpermanent disqualiication.

Procedures

Turning to the procedure in drink drive cases, the current system involvesa screening breathalyser test, normally at the roadside, ollowed by anevidential breath test on a ixed machine in the police station. It appears thattype approval o a mobile evidential machine is close to being achieved. It isimportant that that process be concluded without delay. Mobile evidentialtesting machines should then be made available or use both at the roadsideand at any convenient place in a police station or elsewhere. That shouldspeed up the process o dealing with drink driving very considerably.

In a case where the evidential breath recording in the police station isbetween 40 and 50 microgrammes (mcg) per 100 ml o breath, there is thenavailable to the arrested driver the statutory option o requiring a bloodor urine test to see whether the driver is under the limit or the chosen test.This option was introduced some thirty years ago, at a time when therewere doubts as to the accuracy o breath testing machines and becauseo concerns then expressed over the conversion o breath readings intoblood or urine test levels which resulted in the use o a blood breath ratio o2300:1. In evidence to the Review, there was very widespread support or the

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Drug drivingThe recommended action on drug driving involves improving the evidence,streamlining the current procedures and longer term legislative steps tostrengthen legal regulation o drug driving.

Improving the evidence

The level o evidence on drug driving is poor. In part, this is because othe inherent illegality o many o the drugs which cause driving problemsand the ethical and practical problems o getting accurate inormation ontheir use among drivers. But greater eorts should be made to improve theevidence in two ways:

through ensuring that coroners and procurators iscal routinely requiretesting or, and provide data on, the presence o drugs in road atalities;

and through studies o drug use patterns among drivers including

surveys and voluntary roadside saliva drug tests.

Nevertheless, on the basis o the evidence to the Review, it appears thatthere is a signiicant drug driving problem, which is out o all proportion tothe 56 atal and 207 serious injury accidents reported by police in 2008 asinvolving impairment by drugs. It would assist in monitoring the problemi the Government were to make clear distinctions in its collected statisticsbetween oences or driving whilst impaired by drugs, by alcohol andby both alcohol and drugs in combination. However, even that changewould not reveal the true picture, since the police will, understandably,routinely charge a suspect solely with drink driving when there is a positive

breath test, without going on to consider whether drugs are involved too.For example, in England and Wales in 2008, there were approximately73,000 drink driving oence proceedings in contrast to ewer than 3,000proceedings which could be drink or drug driving oences. Less than 10%o these cases were recorded as drug driving.

Improving procedure

Detection o drug impairment among drivers, and the quality o evidenceput beore the courts, can be improved by greater use o Field ImpairmentTests (FIT) through which police oicers in some orces assess physical co-

ordination and cognitive abilities in order to establish whether impairmentmight be present. Each police orce should invest in training oicers toconduct the FIT test and make it a matter o policy to carry out the test in allcases o suspected driving impairment where excess alcohol has been ruledout with a breath test.

Under a Code o Practice, Chie Constables are supposed to maintain detailso oicers trained to carry out FIT tests, yet no central record is held; nor isthere data on the number o FIT tests carried out by police oicers. Theseigures should be collected and published annually, acknowledging thevalue that the FIT skills oer.

In order to try to ensure that the police give appropriate priority to theoence o driving whilst impaired by drugs, the police should be clearlyincentivised to tackle the problem with greater energy, by making it one o

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Executive summary

the Oences Brought to Justice reported by police orces in England andWales. The Scottish Executive should also endeavour to ensure that it is givenappropriately high priority by the police in Scotland.

The Road Map

The Review has identiied ive stages o development in improving theprocess o detecting and deterring drug driving and improving the legalramework. The irst two stages rely on developments which are close athand, but which need a show o will on the part o Government and police.

Stage one: improving the current process

The eiciency and eectiveness o the process can be improved, throughreducing the time between suspicion o impaired driving and the taking oblood or testing

The current requirement or a orensic physician (FP) to determine whetherthe suspect has a condition which might be due to a drug introduces delayto the blood-testing o the suspect in two respects: the delay in getting thedoctor to the station and the time spent by the doctor in carrying out theexamination to determine the answer to the question. The irst o thesedelays appears unacceptable; the second justiied.

Nurses, in addition to doctors, should be able to ulil the role, given theresponsibility they take in other aspects o custody, as well as their role inprotocol-led decision making in such areas as minor treatment centres, NHSDirect and in triage at A&E. The extension o this role to nurses is particularly

appealing in light o the act that many police orces now routinely employnurses to provide round-the-clock cover or their custody suites.

Whatever the healthcare discipline o the person making the assessment,they need to be trained or the speciic task: understanding the drugs whichmight be involved and their eects; and being able to assess suspectsappropriately to exclude signiicant medical conditions which might alsobe present. The training should also be clear in describing the limits o therole and should discourage their becoming involved in consideration o theevidence o impairment, particularly in court, as this should be provided bypolice oicers who have witnessed the impaired driving.

Stage two: preliminary drug screening tests

The second stage involves removing the role o the orensic physician ornurse in relation to the investigation o driving whilst impaired by certaincontrolled drugs and replacing that screening role with preliminary drugtesting o saliva. This is allowed or by the current legislation, but progresshas been hampered by the lack o type-approval o suitable screeningdevices. The Government should shit its short-term ocus rom typeapproval o roadside testing devices, which has so ar been conoundedby issues o accuracy, intererence and harsh environmental conditions, to

approval o more reliable devices or drugs screening in the more controlledenvironment o the police station.

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Type approval ought in the irst instance to ocus on devices which aretogether capable o detection, at the least, o:

opiates;

amphetamines;

methamphetamine;

cocaine;

benzodiazepines;

cannabinoids;

methadone;

ecstasy (MDMA).

The evidence shows that these are more widely misused by drivers. Wherea preliminary drug test or a listed drug proved negative but there was

continuing concern over the drivers impairment, the police oicer wouldbe able to revert to the existing procedure and call or a doctor or nurse toconirm that the suspect had a condition which might be due to a drug, priorto any blood test.

In addition to the beneits o shortening the time involved in the process,the introduction o such screening devices should have beneits in terms oconveying to the wider community that the police have technology whichcan readily detect common drug use among drivers.

Stage three: a specic oence

The third stage involves the introduction o a new speciic oence o drivingwith certain controlled drugs in the blood at, or above, levels at which thoseare deemed to be impairing. This would need:

research into, and agreement upon, levels at which controlled drugswhich are prevalent among drivers could be deemed to be impairing,with a ocus on the active and impairing metabolites o those drugs;

the creation o a new oence in primary legislation;

the establishment o a list o controlled drugs, the presence o which wasbanned in drivers at or above the speciied levels.

The process would then involve the use o the preliminary drug screening osaliva in the station, screening or drugs, the presence o which was bannedin drivers at or above speciied levels. That panel o drugs would be selected,based on intelligence relating to local drug use patterns, rom a longer listo controlled drugs, which should include all the substances listed above. Ione or more o the drugs are detected by the screening device to be present,then a blood sample would be required. A positive test in the laboratory ator above the speciied level or a given drug would be an oence, regardlesso any evidence o impairment.

The establishment o levels o deemed impairment or controlled drugs

is a considerable task and, should it prove impossible, Government mightinstead wish to create a zero tolerance oence o driving with the activeand impairing metabolites o the controlled drugs listed above in the body.

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Some o these drugs o concern might also be used legitimately, accordingto medical advice. There ought also thereore to be a statutory deence,against the oence o driving with a listed drug in the blood above thespeciied level, that the deendant was driving having taken the drug inaccordance with medical advice.

This stage three regime would provide a means o tackling the major parto our drug driving problem, but it would not deal with the vast majorityo prescribed and over-the-counter medicines, nor would it deal with allcontrolled drugs or new social drugs and legal substances taken or theirimpairing eects, including so-called legal highs. It would thereore benecessary to maintain the existing oence o driving while impaired bydrugs, as a catch-all to cover these other substances and instances. Thereshould be no statutory deence o having taken a drug in accordance withmedical advice in relation to that existing oence, just as there is not atpresent.

Stage four: roadside screening

Ultimately it would provide a great help to the eorts to detect and deterdrug driving to introduce a system as similar as possible to drink driving,where positive roadside screening or alcohol routinely leads onto evidentialtesting in the police station. Thereore, once drug screening devices are typeapproved or use in police stations, Government should continue its workon roadside screening devices, since experience in other parts o the worldshows promise in this area. I the roadside screening test proved positive, thesuspect would be arrested and taken to the police station or a healthcare

proessional to take blood.

Stage ve: evidential drug testing

The last stage o development would be the introduction o evidentialdrug testing o oral luids, removing the need or a blood test. Initially thiswould be in the police station. Following this development, the roadsidepreliminary drug test o saliva would, i positive, be ollowed by an evidentialdrug saliva test back at the station which would substitute or the blood test.Whilst the development o evidential testing equipment is some way o, itis notable that some jurisdictions use, or are moving to use, oral luid/saliva

drug tests as evidence o an oence.Eventually, it is to be hoped that problems o environmental intererencecan be overcome and evidential testing could ultimately be done at theroad side.

Even under this scenario, the general oence o impairment due to drugswould need to be maintained to deal with non-listed substances, prescribeddrugs and over-the-counter medicines.

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Legal drugs/medicines

A driver impaired by legal drugs whether prescribed or over-the-counter is as much a danger to the public as one impaired by controlleddrugs. Research suggests that, amongst health care proessionals, current

knowledge o the impact o medical conditions on driving standards is poor;it may not be unreasonable to iner that advice to patients on medicinesmay also be inadequate. As such, there is the potential to give better adviceon the possible impairing eects o these medicines, both on the part ohealthcare proessionals and through the lealets provided to purchasers oover-the-counter medicines.

The NHS, the Department o Health and the DVLA should ensure thatdoctors are consistently reminded, in their training, their practice and theirassessment, routinely to provide clear advice to patients on the eectso prescribed drugs on driving. Government, in conjunction with the

pharmaceutical industry, should closely consider the patient inormationprovided with both prescribed and over-the-counter medicines and themerits o a simple and easily communicated system o advice related todriving. The French, or example, have instituted a simple colour-codedsystem o labelling o drugs, indicating those which are incompatible withthe driving task, those where caution should be exercised and the degree towhich advice should be sought.

Drugs and drink in combination

Lastly, it is clear, in the evidence considered, that the problem o drivinghaving taken drugs and alcohol in combination is a serious one. Theinternational evidence shows how relatively low levels o drugs combinedwith relatively low levels o alcohol can be very impairing and are notuncommon among drivers. For example, alcohol at a level below the legallimit combined with cannabis is ound by the research to be very impairing.

There is no case or a speciic new oence to deal with this problem, giventhat the current oence o driving while impaired by drink or drugs is aperectly adequate legislative response, i it is pursued more regularly.

Certain o the Reviews conclusions will also assist in tackling this oence.More and better FIT testing will help police oicers to assess and bring

to justice cases where a driver is impaired by both drink and drugs. Theproposal that police should, as a matter o routine conduct a FIT test (orin time a preliminary drug screening test o saliva) o an impaired drivingsuspect, who gives a breath reading below the drink drive limit, should assistwith this. The improvement in data rom coroners and procurators iscal willprovide annual evidence o the prevalence o driving with drugs and alcoholcombined among driver atalities.

In addition, however, in England and Wales the Magistrates CourtSentencing Guidelines should be revised by the Sentencing Council to makethe combination o alcohol and drugs an aggravating actor in all drug

driving and drink driving cases. Similar provision should be made in Scotlandby any new equivalent Scottish body.

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List of recommendations

Drink driving

Recommendation (1):The Ministry of Justice and the new Chief Coronershould ensure that coroners routinely test for, and provide data on, thepresence of alcohol in road fatalities. The Scottish Executive Governmentshould ensure that similar action is taken by procurators fiscal in Scotland.

Recommendation (2):The current prescribed blood alcohol limit in section11(2) of the Road Traffic Act 1988 of 80 mg of alcohol per 100 ml of bloodshould not be reduced to 20 mg of alcohol per 100 ml of blood.

Recommendation (3):The current prescribed blood alcohol limit in section11(2) of the Road Traffic Act 1988 of 80 mg of alcohol in 100 ml of blood

should be reduced to 50 mg of alcohol in 100 ml of blood and the equivalentamounts in breath and urine.

Recommendation (4):The drinks, hospitality and night-time entertainmentindustry should promote and operate measures and best practice acrossGreat Britain that encourage and facilitate situations where the person whois driving abstains from drinking.

Recommendation (5):There should not be a lower prescribed blood alcohollimit of 20 mg of alcohol per 100 ml of blood for drivers of HGVs, PSVs ortaxis and private hire vehicles.

Recommendation (6): Drink driving offences in breach of the proposedlower blood alcohol limit of 50 mg of alcohol per 100 ml of blood committedwhen driving any HGV, PSV, taxi or private hire vehicle should continue to bean aggravating factor in the Magistrates Court Sentencing Guidelines and inany future Scottish sentencing guidelines.

Recommendation (7): Best practice on drink and drug driving interventions,including interlocks, and employer guidelines should be rolled outthroughout the transport industry.

Recommendation (8):There should not be a lower prescribed bloodalcohol limit of 20 mg of alcohol per 100 ml of blood for either young ornovice drivers.

Recommendation (9):The Government should, after 5 years, review theimpact of the new prescribed limit of 50 mg of alcohol per 100 ml of bloodon young and novice drivers and, if the anticipated casualty reductions inthat population do not materialise, consideration should then be given tointroducing a limit of 20 mg of alcohol per 100 ml of blood for those drivers.

Recommendation (10):The reformed driver training and testing regime,including the new pre-driver qualification, should give greater emphasis tothe dangers of drink and drug driving.

Recommendation (11):The statutory option contained in section 8(2) ofthe Road Traffic Act 1988 should be removed.


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Recommendation (12): In establishing a new equivalent in breath to theblood alcohol limit o 50 mg o alcohol per 100 ml o blood, a ratio o 2000:1should be used, giving an alcohol concentration limit o 25 mcg o alcoholper 100 ml o breath.

Recommendation (13):The laboratories should apply a lower allowance tothe analysis o blood and urine specimens o 3 mg/100 ml (or 3%).

Recommendation (14):There should be no charging threshold applied tothe new lower limit o 25 mcg o alcohol per 100 ml o breath. A person whodrives or attempts to drive or is in charge o a motor vehicle on a road or otherpublic place ater consuming so much alcohol that the proportion o it is thatpersons breath exceeds the prescribed limit in breath o 25 mcg o alcoholper 100 ml o breath commits an oence and should be charged, at that level.

Recommendation (15):The excess alcohol oence under section 5(1)(a) o

the Road Traic Act 1988 o driving or attempting to drive a motor vehicleon a road or other public place ater consuming so much alcohol that theproportion o it in a persons blood exceeds the prescribed limit o 50 mg oalcohol per 100 ml o blood should carry a period o disqualiication o notless than 12 months and a band C ine.

Recommendation (16):The Sentencing Council (and any uture ScottishSentencing Council) should determine the applicable bands o penaltiesin the Magistrates Court Sentencing Guidelines or drink driving oencesinvolving alcohol concentrations in excess o a new limit o 50 mg o alcoholper 100 ml o blood.

Recommendation (17):The High Risk Oenders scheme should continue tooperate in respect o oenders who ail to provide a specimen.

Recommendation (18):The provisions o the Magistrates Court SentencingGuidelines in respect o those who ail to provide a specimen should bemaintained and ollowed to guard against oenders beneiting romailure to provide. Any uture Scottish sentencing guidelines should includeequivalent provisions.

Recommendation (19):The High Risk Oenders scheme should continue tooperate in respect o oenders with high levels o alcohol concentration.

Recommendation (20):The application o the High Risk Oender thresholdo two-and-a-hal times the prescribed limit should be applied to a lowerprescribed blood alcohol limit o 50 mg o alcohol per 100 ml o blood.

Recommendation (21):The High Risk Oenders scheme should continue tooperate in respect o repeat oenders.

Recommendation (22):The Government should move switly to bring intoorce those provisions o the Road Saety Act 2006 which will ensure thatHigh Risk Oenders do not regain their licence without irst being assessedby a Department or Transport-approved doctor.

Recommendation (23): Provision should be made in England and Wales, asin section 33A o the Road Traic Oenders Act 1988 in relation to Scotland,or seizure and oreiture o vehicles used by repeat oenders in drink (anddrug) driving oences involving mandatory disqualiication.

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Recommendation (24):The Magistrates Court Sentencing Guidelines shouldbe amended so that, in cases o repeat drink-drive convictions or oencesinvolving mandatory disqualiication and particularly o those convicted osuch oences whilst disqualiied, permanent disqualiication rom driving isroutinely considered by the magistrates. Similarly, sheri courts should alsoroutinely consider permanent disqualiication in such circumstances.

Recommendation (25):The oences involving mandatory disqualiicationin sections 4(1), 5(1)(a), 7(6) and 7A(6) o the Road Traic Act 1988 should beadded to the list o Oences Brought to Justice determined by the Ministryo Justice, on which the police in England and Wales are required to report.

Recommendation (26): Section 6 o the Road Traic Act 1988 should beamended to provide a general and unrestricted power to require anyonewho is driving a motor vehicle to cooperate with a preliminary breath test.This power should not be extended to a person who had been driving, was

or had been attempting to drive or who is or has been simply in charge o amotor vehicle.

Recommendation (27):Type approval and deployment o portableevidential breath testing equipment should be completed no later thanthe end o 2011.

Recommendation (28): Section 7(1)(c) o the Road Traic Act 1988 shouldbe amended to dispense with the requirement or the police to administer apreliminary breath test beore an evidential breath test.

Drug drivingRecommendation (1):The Ministry o Justice and the new Chie Coronershould ensure that coroners test or, and provide data on, the presence odrugs in road atalities. The Scottish Executive should ensure that similaraction is taken by procurators iscal in Scotland.

Recommendation (2):The Government should commission more researchin the driving community to understand better the prevalence o drug drivingin Great Britain and should monitor the impact o changes in law or policy.

Recommendation (3):The Government should improve the clarity o its

inormation on drug driving by: collecting data rom Chie Constables on the numbers o constables

trained to carry out the Field Impairment Test;

collecting data on the number o FIT tests carried out by policeconstables; and

making clear distinctions in its collected statistics between oences ordriving whilst impaired (a) by alcohol, (b) by drugs and (c) by both alcoholand drugs.

Recommendation (4): Each police orce should invest in training constables

to conduct the Field Impairment Test. The number o FIT tests conductedshould increase signiicantly, with orces making it a matter o policyto carry out the test in all cases where impaired driving is suspected,notwithstanding a negative breathalyser test.

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Recommendation (5):The Crown Prosecution Service and Crown Oice,in deciding whether to proceed with cases, and Magistrates and Sheris,in determining cases, should take greater account o evidence o generalimpairment o a driver other than while actually driving.

Recommendation (6):The principal drug driving oence in section 4(1) o theRoad Traic Act 1988 should be included in the Oences Brought to Justicedetermined by the Home Oice and monitored by police orces in Englandand Wales. The Scottish Executive should also endeavour to ensure that thisoence is given appropriately high priority by the police in Scotland.

Recommendation (7): Within a year, section 7(3)(c) o the Road Traic Act1988 should be amended to allow nurses also to take on the role currentlyulilled by the Forensic Physician in determining whether the drug drivingsuspect has a condition which might be due to a drug.

Recommendation (8): Appropriate training should be provided to all healthcare proessionals who undertake the role o assessing whether suspectshave a condition which might be due to a drug in accordance with section7(3)(c) o the Road Traic Act 1988, to ensure an understanding o theirspeciic role and o the potential medical complications which may arise inrelation to persons in custody.

Recommendation (9):The training o Forensic Physicians and custodynurses to carry out the role under section 7(3)(c) o the Road Traic Act 1988o determining whether a suspect has a condition that might be due to adrug should be clear in describing the limits o that role. The training should

encourage discussion between the healthcare proessionals and the policeoicers involved in the case, as the observations o the oicers might wellassist healthcare proessionals in answering the question. However, trainingshould discourage their becoming involved in consideration o the evidenceo impairment in court, since this is not required under the legislation.

Recommendation (10): Chie Constables should ensure that no samples aresubmitted by their orce to laboratories or analysis without the MD DD/E orm orother details o the circumstances o the case which can aid laboratory analysis.

Recommendation (11): Steps should be taken or the earliest practicable typeapproval and supply to police stations o preliminary drug screening devices to

be used in accordance with section 6C o the Road Traic Act 1988. This shouldbe achieved within two years. Type approval ought in the irst instance to ocuson devices capable, in aggregate, o detection o those drugs or categorieso drugs which are the most prevalent, including amongst drivers, namely:

opiates;

amphetamines;

methamphetamine;

cocaine;

benzodiazepines;

cannabinoids;

methadone;

ecstasy (MDMA).

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Recommendation (12):The Government should actively pursue research todetermine the levels o the active and impairing metabolites o the ollowingcontrolled drugs or categories o controlled drugs which can be deemed tobe impairing (as the prescribed limit currently does in relation to alcohol):

opiates; amphetamines;

methamphetamine;

cocaine;

benzodiazepines;

cannabinoids;

methadone;

ecstasy (MDMA).

Recommendation (13): As and when research has established the impairinglevels o the active and impairing metabolites o particular controlleddrugs or categories o controlled drugs, prescribed levels or such drugsor categories o drugs should be set in legislation and a new oenceintroduced which makes it unlawul to drive with any o the listed drugs inthe body in excess o the prescribed level.

Recommendation (14): A statutory deence should be available in respecto any new oence o driving with a listed drug or category o drug inthe body above the statutory prescribed level i the deendant had takenthe drug in accordance with medical advice. This deence should not be

available in respect o the impairment oence under section 4 o the RoadTraic Act 1988 o driving while unit due to drugs.

Recommendation (15): I, despite the above recommendations, it shouldprove beyond scientiic reach to set speciic levels o deemed impairment,the Government should consider whether a zero tolerance oence shouldbe introduced in relation to the ollowing drugs and categories o drugs:

opiates;

amphetamines;

methamphetamine;

cocaine; benzodiazepines;

cannabinoids;

methadone;

ecstasy (MDMA).

rather than continuing to rely solely on the oence o impaired drivingunder section 4 o the Road Traic Act 1988.

Recommendation (16):The current oence under section 4 o the Road

Traic Act 1988 o driving while unit due to a drug should be retainedin order to deal with impairment rom prescribed and over-the-countermedicines, new drugs or other drugs or which it is not possible to determinean impairing level.

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Recommendation (17): Once preliminary drug screening devices have beentype approved or use in police stations, the Government should continueto work on type approval o preliminary drug screening devices which arecapable o being used at the roadside, drawing rom overseas experience.

Recommendation (18): Following type approval o roadside preliminarydrug screening devices, research should continue in the quest or reliableevidential saliva testing devices or an appropriate range o drugs atprescribed levels. This should ocus irst on the type approval o indoortesting devices. Subsequently, research and development should ocuson roadside evidential drug testing devices. However, such research anddevelopment should not be at the expense o reaching the achievable goalo developing and type approving a preliminary drug screening device oruse at the police station in accordance with section 6C o the Road Traic Act1988 as soon as possible.

Recommendation (19): Regulation 74 o the Motor Vehicle (DrivingLicences) Regulations 1999 should be amended to also include oenderswho are disqualiied or driving whilst unit due to drugs under section 4 othe Road Traic Act 1988, thereby resulting in the inclusion o drug drivingoences in the High Risk Oender scheme. This would mean that those whoare disqualiied twice, within a ten-year period, or any drink or drug drivingoences involving mandatory disqualiication are subject to assessment by aDepartment or Transport-approved doctor prior to regaining their licence toascertain whether they have a drink or drug dependency or misuse problem.

Recommendation (20): Following reorm o the drug driving law and

process, the Government should consider the case or the introduction odrug driver rehabilitation courses.

Recommendation (21):The NHS, Department o Health and Driver VehicleLicensing Agency should ensure that doctors are consistently reminded,in their training, their practice and their assessment, o the importance oroutinely providing clear advice to patients on the eects o prescribeddrugs on driving.

Recommendation (22):The Government, in conjunction with thepharmaceutical industry, should address the issue o the quality and clarity

o the patient inormation provided with over-the-counter medicines andthe merits o a simple and easily communicated system o advice related todriving, along the lines o that used in France.

Recommendation (23):The Magistrates Court Sentencing Guidelinesshould be revised by the Sentencing Council to ensure that in England andWales the combination o alcohol and drugs is made an aggravating actor inall drink and drug driving cases where there is evidence o a combination odrugs and alcohol present. Similar provision should be made in Scotland byany new equivalent Scottish sentencing body.

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Part I Introduction


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Chapter 1: Drink driving Law and procedure

Introduction

1.1. On 3 December 2009, I was appointed by Lord Adonis, the then Secretary oState or Transport, to conduct an independent Review o the law on drinkdriving and drug driving. It was agreed that the Review would provide initialadvice to the Secretary o State by 31 March 2010. That advice was providedon 29 March.

1.2. I have been supported by three Department or Transport (DT) oicials, whowere seconded to me and who gave up their Departmental responsibilitiesor the duration o the Review:

Chris Watts, Secretary to the Review

Dr Liz Brutus, Medical AdviserHannah Carpenter, Legal Adviser.

I am most grateul to them or the energy, imagination, commitment andenthusiasm which they have devoted to the work o the Review.

1.3. I also took advice rom three independent experts in the ield o impaireddriving:

Dr Doug Beirness, Senior Research and Policy Analyst and Advisor, CanadianCentre on Substance Abuse

Dr Paul Jackson, Clockwork Research, London

Proessor Alain Verstraete, Laboratory o Clinical Biology. Ghent UniversityHospital

1.4. The Reviews terms o reerence were published by the ormer Secretary oState on 3rd December:

To carry out a study into the legal ramework in Great Britain governingdrink and drug driving and to provide Ministers with initial advice by 31March 2010. To consider in particular:

On drugs

(a) the evidence that a new oence is needed, taking into account theevidence base on the involvement o drugs in road atalities/accidents,data on cases brought to justice etc;

(b) how any new oence should be ramed or example, whether it shouldbe based on an absolute ban, or as with alcohol and driving, a certainlevel o drugs within the drivers system;

(c) which drugs should be covered by any new oence (including the statuso prescribed medications);

(d) the consistency o any new oence with wider government strategies ortackling the adverse health and social impacts o drugs;

(e) the practicability o identiying impairing substances in a legally robustway (including the availability o testing equipment);

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( ) whether, and i so how, administrative procedures (including the role othe Forensic Medical Examiner) could be improved;

(g) evidence o any such oences in other countries, the associated penaltyregimes and the success o policies in those nations.

On alcohol(a) the evidence that a new limit or ramework o limits is needed, taking

into account the evidence base on the involvement o alcohol in roadatalities/accidents;

(b) the impacts o any change in the blood alcohol limit on healthoutcomes, businesses and on the economy more widely;

(c) how any reduction in the drink drive limit should be ramed, and theassociated penalty regime.

1.5. The Review has considered these issues as they apply to Great Britain, sincethat is the jurisdiction to which the relevant law on drink driving and drugdriving currently applies. Road saety in Northern Ireland is a devolvedmatter.

1.6. In relation to drink driving, it is important to note recent developments inrelation to devolution and Scotland. The Report o the Calman Commissionon Scottish devolution1 recommended that the regulation-making powersover drink-drive limits in Scotland should be devolved to Scottish Ministers.The previous Governments response2 to the Commissions Report acceptedthis recommendation, and the Conservative Liberal Democrat coalitionnegotiations statement o Agreements reached, dated 11 May 2010,

also expresses agreement to implement the Calman Commission proposals.Any such change will require primary legislation.

1.7. From time to time over the duration o the Review, I provided the ormerSecretary o State or Transport with updates on the progress o the Reviewand I have provided a small group o Government oicials with a drat o theinal report, to provide the opportunity to highlight any actual inaccuraciesand missed evidence. However, I have not invited comment or observationsrom Ministers or Departmental oicials on the indings o the Review or onits recommendations. The indings, conclusions and recommendations inthis Report are mine alone.

1.8. In reaching the conclusions included in this report, I have borne in mindcertain undamental principles that:

drink and drug driving are clearly activities which endanger public saetyand that more should be done to detect and deter those driving whileimpaired by drink and drugs;

there should be a ocus on practical steps which can deal with asigniicant part o the problem o drink and drug driving the best mustnot be the enemy o the good;

1 Commission on Scottish Devolution. Serving Scotland Better: Scotland and the United Kingdom in the 21stCentury: Final Report, June 2009.

2 Scotlands Future in the UK. Scotland Oce. November 2009.23


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the law should command respect among the general public and thepublic should understand both the law and the eects o drugs andalcohol upon driving;

the law and penalties imposed should be ocussed on road saety (not on

enorcement o wider law or policy on drugs and drink) and should relectthe degree o risk caused by impairment;

the procedures involved in enorcing the law should be air to both thecitizen suspected o the oence and to the wider public who are at riskrom drink and drug driving;

the evidence o both the level o drink or drugs in a suspects body andthe level o impairment should provide the best practicable indication othe levels at the time o driving;

the penalties or the oences should be a deterrent, adequatepunishment or the oence and saeguard the public;

any changes to the law or legal procedure need to be accompanied byappropriate and complementary campaigns o public inormation andenorcement.

Trends in road safety1.9. In 1966, the year beore the introduction o both the blood alcohol limit

or drink driving and the preliminary breath test (commonly known as andreerred to in this Report as the breathalyser), there were 7,985 road deathsin Great Britain a peacetime peak. Since then, initiatives by central andlocal government, the police and the vehicle industry have seen British road

saety transormed. In 2008 there were 2,538 road deaths in Great Britain. Inthat year, 430 deaths and 1630 serious injuries were estimated to haveinvolved drivers in excess o the blood alcohol limit. Given the context omotor vehicle traic having trebled between 1967 and 2008, both roadsaety and the drink drive regime are areas o conspicuous public policysuccess. Strategies combining eective enorcement o heavy penalties ordrink driving backed by high proile advertising have contributed to thesesuccesses. Signiicantly, there has also been a cultural shit where, or themajority o the public, drink driving is no longer considered acceptable.

1.10. Yet the total o both road deaths and o drink driving deaths remains high.The number o drink-drive deaths compares unavourably with other issueso popular concern. For example, the 380 drink-drive deaths in England andWales in 20073 compare with 270 knie murders4 and 227 deaths due to ire.5

Furthermore, the total o road deaths in England & Wales6 2,266 compareswith 784 homicides.7The Department or Transport has estimated that theprevention o those drink drive accidents which resulted in all reportedinjuries (including killed, serious and slight injuries) in 2008 would have

3 Reported Road Casualties Great Britain 2008 (supplementary tables). Department or Transport 2009.4 Home Oce. Crime in England and Wales 2007/08: Findings rom the British Crime Survey and police

recorded crime. Home Oce Statistical Bulletin. Jul 08.5 Oce o National Statistics. Mortality Statistics. Deaths Registered in 2007.6 Reported Road Casualties Great Britain 2008. Department or Transport.7 Home Oce. Crime in England and Wales 2007/08: Findings rom the British Crime Survey and police

recorded crime. Home Oce Statistical Bulletin. Jul 08.

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saved around 1.2 billion, taking no account o those accidents that resultedin damage only.

1.11. A minority o drivers persist in drink driving. The last ten years in particularhave seen a tailing o in the reduction o drink drive casualties and, as such,

the subject needs to be revisited to determine whether more can be done toreduce drink driving incidents urther. O those at risk, people under 30 are aparticularly vulnerable group.

1.12. All those successul initiatives on road saety behaviour, enorcement andengineering can oer a continuing beneit in terms o reducing casualtiesonly once. Thereore it is important to consider what more can be done toproduce a urther reduction.

1.13. A considerable amount is known about drink driving, ollowing many yearso research and analysis o casualty and collision statistics. Considerably less

is known about drug driving, partly because o the illegality o possessingand supplying controlled drugs, in clear contrast to alcohol, and partlybecause o a lack o domestic research on the issue.

1.14. The available casualty data suggests that there were 56 atal accidents inwhich impairment by legal or illegal drugs was judged by the police to bea contributory actor.8Yet more than one in ten o adults admitted to usingillegal drugs in 2008/099 and, among the limited evidence that there is, aScottish Executive study has suggested that drug driving might be prevalentamong as much as 11% o the driving population.10 We also know that theevidence rom coroners and procurators iscal showed a massive increase

in drugs in the blood o deceased drivers in the decade to 2000.11

There isthereore reason to suspect that the oicial data on drug driving tell only asmall part o the story.

Evolution of the drug driving and drink driving offences1.15. Driving whilst impaired by drink or drugs has been an oence since 1930.

Until the 1960s, impairment had speciically to be proved in the case o bothdrink and drugs.

1.16. On the basis o international research about the relationship betweenblood alcohol levels and involvement in road traic accidents, legislation

in 1967 introduced a blood alcohol limit above which it was illegal to drive.Eectively, drivers with a blood alcohol concentration above that limit weredeemed to be impaired, regardless o any argument that they might mountto the contrary. A driver would irst be subject to a breathalyser test and, ithat was positive, would be required to provide a specimen o blood or urineto conirm the level o alcohol present. The penalty or driving whilst overthe blood alcohol limit was a minimum o one years disqualiication. Finesand prison sentences were at the courts disposal.

8 Reported Road Casualties Great Britain 2008. Department or Transport. 2009.9 Hoare J. British Crime Survey, 2008-2009: Special Licence Access, Drug Use Module (BCS). Home Oce. 2010.10 Scottish Executive Social Research, Myant et al. 2006. 11 Tunbridge RJ, Keigan M, James F. (2001) The Incidence o Drugs and Alcohol in Road Accident Fatalities. TRL

Report 495. Crowthorne: TRL

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1.17. The oence o driving while impaired by alcohol was also retained andcontinues to apply to impaired driving and to some additional classes ovehicles.

1.18. The early 1980s saw the introduction o evidential breath tests in policestations. This meant that, in most cases, the suspect would have a screening,breathalyser test at the roadside and then, i the breathalyser indicated apositive result, a urther, evidential, breath test at the police station whichwould orm the basis or any charge and which would be used in evidence.

1.19. This is the regime which prevails in Great Britain today. The current law inrespect o drink driving is more ully explained in Chapter 2.

1.20. It is useul to consider this history not only because it casts some light onthe issues o how to improve our drink driving record, but also because ithelps in considering how an oence o drug driving might be developed.

The current oence o driving while impaired by a drug still relies on prooo impairment, as drink driving cases did prior to the introduction o theblood alcohol limit. Consideration o a new drug driving oence has oten,in the light o the development o the drink driving oence, ocused onthe possibility o the establishment o a speciic oence o driving withparticular drugs in the blood at speciied levels. Fuller details o the drugdriving oence are set out in Chapter 5.

Measuring alcohol in the body1.21. Alcohol concentrations can be measured in 3 main body samples in breath

(in terms o microgrammes o alcohol per 100 millilitres o breath, expressedas mcg/100 ml), in urine and in blood (in terms o milligrammes o alcoholper 100 millilitres o urine or blood, expressed as mg/100 ml). Internationally,alcohol concentration is most commonly expressed in terms o blood, theblood alcohol concentration (BAC). BAC can be expressed in a variety oways; however, in this report it will be expressed in mg/100 ml. Thereore, asan example, the legal BAC limit in Great Britain is 80 mg/100 ml.

1.22. In Great Britain, the ratio that describes the relationship between the alcoholin breath and blood has been deined (because it is known to vary) as being2300:1. For example, this means that a blood alcohol concentration o 80

mg/100 ml is equivalent to a breath alcohol concentration o 35 mcg/100 ml.1.23. Reerence is oten made to a zero BAC limit. However, the Review has

considered the practical minimum BAC limit to be 20 mg/100 ml and not0 mg/100 ml. This is because certain common substances such as coughsyrups and mouthwashes may contain alcohol and there is also a theoreticalpossibility o natural alcohol production rom bacteria in the gut. (This 20mg/100 ml limit will also permit the consumption o a small amount oalcohol as part o a religious unction.)

Consultation

1.24. Reorming the current legal ramework covering drink and drug drivingraises complex legal and practical issues which may aect a great manyindividuals and organisations. It has thereore been essential that ways in

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which the current legislative regime, including enorcement and penalties,might be changed should be discussed with as many interested persons andbodies as possible within the time available.

1.25. With this in mind, an invitation to submit views was published on the Reviewwebsite and circulated to more than 150 organisations with a particularinterest in the issues involving drink and drug driving. Written views wereinvited in response to questions arising rom the Terms o Reerence. Thesequestions can be ound in Annex A, and a list o those organisations andindividuals who responded is in Annex B.

1.26. In addition 31 meetings have been held with key interested organisations todiscuss the issues o drink- and drug driving. A list o those organisations andindividuals who gave oral evidence is at Annex C. The comments which havebeen received both in writing and through meetings have greatly assistedthe work o the Review.

Visits1.27. In the course o the Review, visits have been made to the police in order

to observe eorts to detect drivers impaired by drink and/or drugs. Thesevisits have also provided the opportunity to observe the process o testingand charging suspects at the police station. A visit was also made toone o the main laboratories used by the police to test blood and urinesamples or drug and alcohol content. Members o the Review team alsosaw or themselves proceedings on drink driving cases at Horseerry RoadMagistrates Court, Westminster, London. I am grateul to all those who have

assisted the Review in this way. The visits are listed at Annex D.

Statistics and analysis1.28. The Department or Transport and the Ministry o Justice collate data

regarding drink and drug driving oences and casualties each year due todrink or drug driving. The Home Oice also publishes data on the number obreathalyser tests conducted and the outcome o such tests. Both publisheddata and data kindly provided by Government statisticians have been usedin the course o the Review and these are cited throughout this Report.

Other information1.29. A list o statutory provisions, text books, policy documents, articles, websites

and television programmes considered in the course o the Review is atAnnex E.

Evidence review1.30. A list o research reerred to is attached at Annex F. Supplementary research

into drug driving was commissioned rom Dr Paul Jackson. This has beenpublished in parallel with this Report.

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Part II Drink driving


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Introduction

2.1. This chapter deals with the current law and procedure in relation to drinkdriving. It sets out the current legislation, including the drink drive oences,alcohol testing procedure and the associated penalty regime. It also containsdeinitions and descriptions o processes or terms that are reerred to in theremainder o Part II as well as other legislation which is o relevance to thissubject and the Reviews recommendations.

2.2. This chapter is divided into the ollowing seven headings: Introduction;

Legislative history;

The current law; Other procedural issues;

The current penalty regime or drink driving oences;

Coroners and procurators iscal;

The current law in relation to drink and drugs and operating other modeso transport.

Legislative history2.3. In order to put the speciic oence o driving over the prescribed limit into

context, it is useul to begin with a general overview o the legislative historyo drink driving oences.

2.4. The oence o driving, attempting to drive or being in charge o a motorvehicle while under the inluence o drink (or drugs) irst appeared on thestatute book in the Road Traic Act 1930.12 Under the Road Traic Act 1930,a conviction required proo that the driver was under the inluence o alcoholto such an extent that the driver was not in proper control o the vehicle.

2.5. The modern wording o driving while unit to drive through drink (or drugs)was introduced by section 6 o the Road Traic Act 1960, although it was

not until the Road Traic Act 1962 that the deinition o unit to drive wasamended rom meaning under the inluence o drink or a drug to such anextent as to be incapable o having proper control o a motor vehicle, asin the Road Traic Act 1930, to meaning that the persons ability to driveproperly is or the time being impaired, which remains the wording today.

2.6. The Road Traic Act 1962 also introduced or the irst time the power toobtain and use evidence o the proportion or quantity o alcohol or oany drug which was contained in the blood or present in the body o theaccused. The legislation provided that a specimen o breath, blood or urinecould be obtained by a medical practitioner or such purposes, with the

consent o the accused. It also made provision or a reusal to give consent

12 Prior to the Road Trac Act 1930, it was an oence under the Criminal Justice Act 1925 to be ound drunk incharge o any mechanically propelled vehicle on any highway or other public place.

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without reasonable cause to be used against the accused. The current legalblood alcohol concentration (BAC) limit o 80 mg o alcohol in 100 ml oblood was irst introduced by the Road Saety Act 1967 (the 1967 Act) whichmade it an oence to drive in excess o that limit and obliged drivers tosubmit to a screening, breathalyser test at the roadside. Prior to the 1967Act, drivers could only be convicted o driving while under the inluence oalcohol to such an extent that the driver was not in proper control o thevehicle. The 1967 Act was replaced by the Road Traic Act 1972 (the 1972Act) without any signiicant amendments to the legislation.

2.7. The procedure under the 1967 Act and subsequently the 1972 Act was,however, lawed. Persons charged with the oence had the right to trial onindictment beore a jury13and this, together with the strict rules regardingthe use o the breathalyser devices, meant that drivers were oten acquitteddespite evidence that such deendants BAC was ar in excess o the limit, ongrounds o technicalities by arguing that some procedural step had not beencarried out precisely as set out in the statute.

2.8. In order to address this, the provisions in the 1972 Act were replaced bysection 25 o and Schedule 8 to the Transport Act 1981 (the 1981 Act) whichincreased the number o circumstances in which a driver was obliged toprovide a breath or other specimen and, signiicantly, introduced the useo evidential breath testing equipment. This removed the need to routinelytest blood or urine. The result o the evidential breath test is admissible asevidence in court.

2.9. The evidential breath testing devices were novel and their introductionraised concerns regarding the reliability o the new machines, the bloodto breath ratio that the machines were calibrated to and the issue osel-incrimination by the driver who was obliged to submit to the test.Consequently, Parliament considered it necessary to allow a deendant theopportunity to oer a blood or urine sample in place o breath where thebreath result was marginally over the prescribed limit. A provision to thiseect was inserted into section 8(6) o the 1972 Act by Schedule 8 to the1981 Act.

2.10. The rationale behind this provision was to provide a saeguard or individualswhose blood/breath correlation was dierent to the 2300:1 ratio that the

machines are calibrated to and to allow or any slight variations in themachines accuracy. Whilst it was acknowledged that the optional blood orurine test would more oten than not validate the evidential breath test andthat the option could also give rise to deendants using it as an opportunityor their BAC level to decrease whilst waiting or a blood or urine test, it waselt that the option would help to ensure public acceptance o the machinesby providing an accused person with the chance to have their sampleindependently analysed. This option is known as the statutory option and iscurrently enacted in section 8(2) o the Road Traic Act 1988 (the Traic Act).

2.11. The Traic Act and the Road Traic Oenders Act 1988 (RTOA) repealed thewhole o the 1972 Act and Part IV o, and Schedules 7 and 8 to, the 1981 Act.

13 The Criminal Law Act 1977 abolished trial by jury or oences carrying no more than 6 monthsimprisonment.

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This was mostly an exercise in consolidation and no major changes weremade to the statutory provisions concerning road traic oences.

2.12. The Police Reorm Act 2002 inserted a new section 7A into the Traic Actto provide or specimens o blood to be taken rom persons without their

consent provided certain conditions are met.

2.13. The Railways and Transport Saety Act 2003 amended the Traic Act byamending section 6 o the Traic Act (breath tests) and adding ive newsections, section 6A to 6E. The amended section 6 provided new powersor the police to administer three preliminary tests a preliminary breath(breathalyser) test (section 6A), an impairment test to indicate whether aperson is unit to drive due to drink or drugs (section 6B) and a test or thepresence o drugs in a persons body (section 6C). The amended section 6enabled a constable to require a person to co-operate with any one ormore o the three preliminary tests in certain circumstances and made it

an oence i, without reasonable excuse, that person ailed to co-operatewith such a request. As explained in urther detail in paragraph 5.31, thereis currently no drug screening device authorised or use by the police inGreat Britain. Sections 6D and 6E made provision or power o arrest andpowers o entry respectively in connection with the administration o thepreliminary tests.

2.14. The Serious and Organised Crime and Police Act 2005 made urtheramendments to the Traic Act by amending sections 6D (arrest), 7 (provisiono specimens or analysis), 8 (choice o specimens o breath), 9 (protection orhospital patients) and 10 (detention o persons aected by alcohol or a drug)

to permit the police to carry out evidential breath testing not only at thepolice station, but also at a hospital or at a place near where the preliminarybreathalyser test has been administered (such as at the roadside).

2.15. Although these amendments allowed the police to conduct evidentialbreath testing at the roadside, it was recognised that there may becircumstances where it may be necessary to arrest and detain the personuntil they are it to drive. Accordingly, section 10 o the Traic Act was alsoamended so as to provide that a person can be detained at a police stationi a constable has reasonable grounds or believing that, were that persondriving a mechanically propelled vehicle, they would be unit to drive and

thereore committing an oence under section 4(1) o the Traic Act.

The current law2.16. The current statutory provisions concerning drink (and drug) driving are

contained in sections 411 o the Traic Act. The principal provisions can besummarised as:

driving, attempting to drive or being in charge o a mechanicallypropelled vehicle whilst unit to drive through drink or drugs (section 4(1)and (2));

driving, attempting to drive, or being in charge o a motor vehicle withexcess alcohol levels (section 5(1)); and

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ailing to provide a specimen or a breath test or specimens or analysisand ailing to permit a specimen o blood to be tested in a laboratory(sections 7(6) and 7A(6)).

2.17. The ull text o the relevant sections o the Traic Act is reproduced in Annex G.A note about drugs

2.18. The oence under section 4 involves the consumption o drink or drugs.Accordingly, some o the provisions concerning the testing regime, relatedoences (or example, reusing to provide a sample) and penalties applyequally in cases involving either type o substance. This Chapter considersthe relevant provisions o the Traic Act in the context o alcohol andChapter 5 does so in relation to drugs. There is, however, some unavoidableoverlap in the discussion o the legislative ramework concerning drink- anddrug -driving and there is consequently some cross-reerencing between

Chapters to avoid unnecessary duplication.

Motor vehicles

2.19. The Traic Act legislation distinguishes between motor vehicles andmechanically propelled vehicles. Section 4 o the Traic Act applies todriving, attempting to drive or being in charge o a mechanically propelledvehicle whilst the excess alcohol oence under section 5 applies only tomotor vehicles.

2.20. A motor vehicle is deined in section 185 o the Traic Act as a mechanicallypropelled vehicle intended or adapted or use on a road. Vehicles such

as gol buggies are not intended or adapted or use on the road and arethereore considered to be mechanically propelled vehicles, not motorvehicles, within the meaning o the Traic Act. Consequently, the oenceunder section 5 does not apply in relation to such types o mechanicallypropelled vehicle.

Unt to drive

2.21. It is an oence under section 4(1) o the Traic Act to drive or attempt todrive a mechanically propelled vehicle on a road or other public place whileunit to drive through drink (or drugs). This is reerred to in this Report as the

impairment oence. It is an oence under section 4(2) to be in charge o amechanically propelled vehicle while unit to drive through drink (or drugs).

2.22. These are behaviour based provisions which require evidence o unitness todrive. Under section 4(5), a person is considered unit to drive i that personsability to drive is or the time being impaired. A successul prosecution underthe impairment oence (section 4(1)) will require evidence o impairmentat the time o driving (or attempting to drive) and that that impairment wascaused by drink and not by something else (e.g. atigue or illness).

2.23. The impairment oence is covered in more detail in Chapter 5 in relationto drugs. However, it is o relevance in relation to alcohol, where scientiicor expert evidence will be required to show that alcohol was ound to bepresent ollowing a breath, blood or urine test and evidence o a moresubjective nature, such as that the deendant appeared to be under

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the inluence o alcohol, rom the way that person was behaving, theirappearance or demeanour, the manner o their driving and any otherrelevant other indicators. Such evidence may also be obtained romobservations made during the administration o a preliminary impairmenttest. This procedure is considered in more detail in Chapters 5 and 6 inrelation to deendants who are driving whilst unit to drive through drugs.

Excess alcohol

2.24. By virtue o section 5(1)(a) o the Traic Act, it is an oence to drive orattempt to drive a motor vehicle on a road or other public place aterconsuming so much alcohol that the proportion o it in the persons breath,blood or urine exceeds the prescribed limit. This is reerred to in this Reportas the excess alcohol oence. This oence is based on the relationshipbetween the legal BAC level and impairment, thus providing a legal shortcut by removing the need to prove that the driver was impaired as a result

o consuming alcohol. Section 5(1)(b) similarly provides or being in chargeo a motor vehicle when over the prescribed limit. Unlike the impairmentoence, separate evidence o impairment or impaired driving is not requiredor a successul prosecution.

2.25. The statutory prescribed limit is set out in section 11(2) o the Traic Act andmeans:

(a)35 microgrammes o alcohol in 100 millilitres o breath, or(b) 80 milligrammes o alcohol in 100 millilitres o blood, or

(c) 107 milligrammes o alcohol in 100 millilitres o urine.

2.26. No preerence is given in the Traic Act to any one o the above limits.However, as a consequence o the use o evidential breath testing machines,the cited reading or a prosecution will normally be given in breath, unlessthe accused has provided a blood or urine sample.

Preliminary testing

2.27. The police have a general power under section 163 o the Traic Act tostop any vehicle at any time. Although in practice the manner o a personsdriving or a road traic contravention may alert the police and cause themto stop a particular driver, no such grounds are, in law, required.

2.28. There is no similar general power to require a person to cooperate with apreliminary test or the presence o alcohol (or drugs). Section 6 o the TraicAct provides the police with a power to administer one or more o threetypes o preliminary test in the ollowing circumstances:

(a)Where a constable reasonably suspects that the person (i) is driving, attempting to drive or in charge o a motor vehicle on a

road or other public place, and

(ii) has alcohol or a drug in his body or is under the inluence o a drug.(b) Where a constable reasonably suspects that the person

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(i) has been driving, attempting to drive or in charge o a motor vehicleon a road or other public place while having alcohol or a drug in hisbody or while unit to drive because o a drug, and

(ii) still has alcohol or a drug in his body or is still under the inluence oa drug.

(c) Where a constable reasonably suspects that the person (i) has been driving, attempting to drive or in charge o a motor vehicle

on a road or other public place, and

(ii) has committed a traic oence while the vehicle was in motion.14

(d) Where an accident occurs owing to the presence o a motor vehicle on aroad or other public place, and a constable reasonably believes that theperson was driving, attempting to drive or in charge o the vehicle at thetime o the accident.

2.29. Where one or more o the circumstances described in paragraph 2.28arises, a constable has the power to require a person to cooperate with apreliminary breath test under section 6A and/or a preliminary impairmenttest under section 6B. The third available test under section 6C is apreliminary drug test. This is considered in Chapters 5 and 6. Where theconstable suspects that the person may have alcohol in their body, theobvious irst step would be to require the person to cooperate with thebreathalyser test. The requirement to cooperate with a preliminary test maybe made by a constable in any place.

Preliminary breath test

2.30. As explained in paragraph 1.9, the preliminary breath test administeredunder section 6A o the Traic Act will be recognised as the roadsidebreathalyser. The breathalyser test may be used or the purpose o obtainingan indication o whether the proportion o alcohol in the persons breath orblood is likely to exceed the prescribed limit (section 6A(1)). It may only beadministered at or near the place where the requirement to cooperate withthe test was imposed. Thus, where the requirement is made at the roadside,the test must be administered at the roadside or nearby; i the requirementis made at a hospital, the test must be administered at the hospital ornearby. Where the test is administered ollowing an accident, there is speciic

provision or the test to be administered at a police station (section 6A(2)and (3)). The breathalyser device used must be o a type approved by theSecretary o State (section 6A(1)).

Preliminary impairment test

2.31. Section 6B o the Traic Act provides or a preliminary impairment test. Thisis a screening test which must be designed to indicate whether a person isunit to drive and whether the unitness is likely to be due to drink (or drugs).

2.32. The test, known as the Field Impairment Test (FIT), may be administeredeither ollowing, or as an alternative to, the breathalyser test. In the case o

14 For example, not wearing a seatbelt, having a broken headlight, contravening a trac sign, ailing to stop ata red trac light or speeding.

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alcohol, the police may choose to administer this test where the breathalysertest indicates that the proportion o alcohol in the persons body is belowthe prescribed limit but the person is still showing signs o unitness to drivethat may be caused by alcohol, drugs or a combination o the two.

2.33. Section 6B(2) o the Traic Act provides that the Secretary o State must issuea Code o Practice setting out the kinds o tasks and observations that mayorm part o the FIT test, the manner in which the test should be carried outand the inerences that may be drawn rom the observations made in thecourse o the test.

2.34. In accordance with this sub-section, the Code o Practice or PreliminaryImpairment Tests (the Code) was issued by the Secretary o State orTransport in 2004. As required under section 6B(3), the tests set out in theCode are designed to indicate whether a person is unit to drive and, i so,whether that persons unitness is likely to be due to drink or drugs.

2.35. The FIT test consists o a pupillary examination and a series o separatephysical tasks set by the constable in accordance with the Code. Byobserving the persons ability to perorm these tasks and making such otherobservations as to the persons physical and cognitive state as the constablethinks expedient, the constable can obtain an indication whether the personis unit to drive and, i so, whether that persons unitness is likely to be dueto drink (or drugs).

2.36. The FIT test may only be administered at or near the place where therequirement to cooperate with the test is imposed or, where the constable

thinks it expedient, at a police station. There is no requirement or thepolice to administer the FIT test, but where it is administered, it may only beconducted by a constable who has been approved to carry out such tests(section 6B(6)).

2.37. The FIT test is o particular relevance in relation to persons suspected obeing unit to drive through drugs and is thereore considered in more detailin Chapters 5 and 6.

Failure to cooperate with a preliminary test

2.38. By virtue o section 6(6) o the Traic Act, a person commits an oence ithey ail, without reasonable excuse, to co-operate with any preliminary testin pursuance o a requirement imposed under section 6.

2.39. A reasonable excuse must generally arise rom a physical or mentalcondition which prevents the person rom taking the test or providing aspecimen, together with medical evidence to support any such claim.

Arrest following a preliminary breath (breathalyser) test

2.40. Section 6D(1) o the Traic Act provides an explicit power o arrest where,ollowing the breathalyser test, the constable reasonably suspects that theproportion o alcohol in the persons breath or blood exceeds the prescribed

limit. Such a suspicion will arise where the result o the breathalyser testindicates that a person has over 35 mcg o alcohol per 100 ml o breath;

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and the arrested person will be taken to a police station to provide urther,evidential, specimens o breath.

Arrest on suspicion of driving, attempting to drive or being in charge of a

mechanically propelled vehicle when unt due to drink2.41. Where, a constable has reasonable grounds or believing that the person

may be driving while unit to do so through drink (or drugs), either as aresult o the FIT test or, where a constable has ormed such a suspicionon account o other observations, the constable may arrest the personconcerned under the general power o arrest contained in section 24 o thePolice and Criminal Evidence Act 1984 (PACE) in order to continue with theinvestigation by way o obtaining a specimen o blood or urine to submit oranalysis.

2.42. In Scotland, there is an explicit power o arrest in relation to the impairmentoence in section 4(6) o the Traic Act. This sub-section was repealed inrelation to England and Wales by the Serious Organised Crime and Police Act2005 but remains in orce in relation to Scotland.

Provision of breath and other specimens for analysis (evidential test)

2.43. In the course o an investigation into whether a person has committedthe impairment oence or the excess alcohol oence, an oicer has thepower under section 7(1) o the Traic Act to require the provision o twospecimens o breath or analysis on a device type approved by the Secretaryo State or the provision o a specimen o blood or urine or laboratory

analysis.2.44. Specimens o breath, blood or urine provided in accordance with section

7(1) are used or evidential, rather than screening, purposes.

2.45. The requirement to provide two specimens o breath may be made at apolice station, at a hospital or at or near a place where the breathalyser testwas carried out or would have been carried out had the person compliedwith it, such as at the roadside (section 7(2)). As explained in paragraph 2.43,in 2005 the power to carry out an evidential breath test at a police stationwas widened to enable such testing to be carried out a hospital or at or neara place where the breathalyser test was carried out (or would have been

carried out but or the persons reusal), such as at the roadside. However,portable evidential breath testing equipment that would acilitate testing insuch places has still to be approved by the Secretary o State or use in GreatBritain. This is a process known as type approval and is considered in Chapter3. Consequently, all evidential breath specimens may, at the moment, onlybe provided at a police station using ixed equipment.

2.46. There is an issue which will need to be addressed when portable evidentialbreath testing devices are type-approved or use in Great Britain in relationto the use o such test equipment without a prior screening test. There isno problem i the police choose to use the evidential testing equipment

at a police station or a hospital. They can do so without having done aprior screening test. However, i they wish to use the evidential equipmentelsewhere, e.g. at the roadside, it is currently the case that they can only do

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so in accordance with section 7(2)(c), that is, at or near a place where thebreathalyser test has been administered (or would have been but or thepersons ailure to cooperate).This means that the police are obliged undersection 7(2)(c) to irst administer the screening breathalyser test beoreproceeding with the evidential test.

2.47. The requirement to provide a blood or urine sample may be made eitherseparately or ollowing the provision o two specimens o breath. Therequirement may only be made at a hospital or a police station (section 7(2)).However, it may not be made at a police station, unless one o the ollowingcircumstances applies:

(a) the constable has reasonable cause to believe that the accused cannotor should not be required to provide an evidential breath sample ormedical reasons, or

(b) specimens o breath have not been provided elsewhere and at the time

the requirement is made a device or reliable evidential breath testingdevice is not available at the police station or it is not practicable to usesuch a device there, or

(c) the const

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