Drink driving – Briefing Note for Commercial Magazine

 

  • Would it first be possible to get a run-down of exactly what the law on drink driving is for truck drivers in the UK – same limit throughout the UK?

 
The legal alcohol limit for drivers in the UK is:

  • 35 microgrammes of alcohol per 100 millilitres of breath
  • 80 milligrammes of alcohol in 100 millilitres of blood
  • 107 milligrammes of alcohol per 100 millilitres of urine

I understand that the police are not likely to prosecute you though if one of the two breath tests you take is below 39 microgrammes.
The way alcohol affects you depends on a number of variables such as your weight, age (young people tend to process alcohol slower), sex, metabolism, type and amount of alcohol drunk, stress levels, what you’ve eaten recently, stress levels at the time.
The police can stop you at any time and ask you to take a breath test if

    1. they think you’ve been drinking
    2. you’ve committed a traffic offence
    3. you’ve been involved in a road traffic accident

If you refuse to take a breath test, or fail to supply a sample of breath and don’t have a ‘reasonable excuse’, you can be arrested.
The breath test gives a result straight away and if it shows you’re not over the drink drive limit, then you must be allowed to go.
If you fail the breath test, you’ll be taken to a police station and given 2 more breath tests. If they’re positive, you may be charged.
The Northern Irish were proposing new legislation lowering blood alcohol limits to 50mpg per 100ml for most drivers and 20mg per 100 ml for professional drivers. 20mg is the limit in Sweden and Norway.
 
On 3 July 2012, powers to set the drink drive limit in Scotland were transferred to the Scottish  Parliament, and the Scottish  Government was also proposing a reduction in the  blood   limit  80mg   per  1OOml to  50mg.     The  results   of  a  consultation were published earlier this year, with approximately 3/4 of people  supporting the change.


 

  • Any different laws when travelling through Europe?

 
In most other European countries, the limit is less, usually 50 milligrammes per 100 millilitres of blood.  Only the UK and Malta now maintain a 80mpg per 100ml blood alcohol limit.


 

  • Again what are the punishments – drunk in charge of a vehicle, dangerous driving, etc – and the potential lengths of punishment?

 
 
The following penalties may apply if you’re charged and found guilty of a drink driving offence.

(a) Being in charge of a vehicle while above the legal limit or unfit through drink

  • 3 months’ imprisonment
  • up to £2,500 fine
  • a possible driving ban (10 points if no ban)
  • The Magistrates’ Court Sentencing Guidelines indicate a length of ban is affected by the level of alcohol found in the driver and sets out starting points based on a first time offender pleading not guilty

(b) Driving or attempting to drive while above the legal limit or unfit through drink

  • 6 months’ imprisonment
  • up to £5,000 fine
  • a driving ban for at least 1 year (3 years if convicted twice in 10 years)
  • The Magistrates’ Court Sentencing Guidelines indicate a length of ban/ likely sentence is affected by the level of alcohol found in the driver and sets out starting points based on a first time offender pleading not guilty
Level of Alcohol Disqualification Guideline starting point
Breath (mg Blood Urine
36-59 81 – 137 108 – 183 12 – 16 months Band C fine
60  89 138 – 206 184 – 274 17 – 22 months Band C fine
90 – 119 207 – 275 275 – 366 23 – 28 months Medium level community order
120 – 150 and above 276 – 345 and above 367 – 459 and above 29 – 36 months 12 weeks custody

 

(c) Failure to provide a specimen of breath, blood or urine for analysis (drive/attempt to drive)

  • 6 months’ imprisonment (if drive/attempt to drive) or 3 months (if in charge of a vehicle)
  • up to £5,000 fine (if drive/attempt to drive) or up to £2500 (if in charge of a vehicle)
  • a ban from driving for at least 1 year (if no ban then 10 points)

(d) Failure to provide a specimen of breath, blood or urine for analysis (in charge of a vehicle)

  • up to  3 months imprisonment
  • up to £2500
  • discretionary ban from driving but if no ban then 10 points

(e) Unfit through drink (drive/attempt to drive)

  • 6 months’ imprisonment
  • up to £5,000 fine
  • a ban from driving for at least 1 year

(f) Unfit through drink (in charge)

  • up to 3 months imprisonment
  • up to £2500 fine
  • discretionary ban but if no ban then 10 points


(g) Causing death by careless driving when under the influence of drink

  • 14 years’ imprisonment
  • an unlimited fine
  • a ban from driving for at least 2 years
  • an extended driving test before your licence is returned

(h) Failure to co-operate with a preliminary roadside breath test
 

  • 4 points
  • £1000 fine


The High Risk Offenders Scheme

If you’re a ‘high risk offender’, your driving licence won’t be returned automatically at the end of a driving ban. You’ll only get your licence back if you pass a medical examination.  You’re a high risk offender if you:

  • were convicted of 2 drink driving offences within 10 years
  • were driving when you were at 2.5 times or more the legal alcohol limit
  • refused to give the police a sample of breath, blood or urine to test for alcohol
  • refused to allow a sample of your blood to be tested for alcohol (eg if it was taken when you were unconscious)

Other problems you could face

  • increased car insurance costs
  • risk of losing your job
  • difficulties travelling to countries such as the USA
  • the possibility of undergoing medical examinations before you can drive again
  • attendance on a drink driver’s rehabilitation course.
  • a criminal record  with the  conviction for  drink driving  remaining on your licence for 11 years.

 
Causing Serious Injury by Dangerous Driving
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 has recently introduced the offence of “Causing serious injury by dangerous driving.”  The offence is defined as follows:

“A person who causes serious injury to another person by driving a mechanically propelled vehicle dangerously on a road or other public place is guilty of an offence.”

It is an offence which is triable either way, meaning it can be dealt with by either the Crown Court or the Magistrates’ Court.  If the Magistrates’ Court deems its sentencing powers are insufficient for the alleged seriousness of the offence committed, or if the defendant elects to, then the matter will be heard in the Court.
Sentence
In the Magistrates’ Court, the maximum sentence can be up to six months in prison, whilst in the Crown Court, the maximum sentence can be up to five years in prison.
Comments
The offence has been introduced to attempt to plug the gap between dangerous driving, with a maximum sentence of two years and death by dangerous driving, with a maximum sentence of fourteen years


 

  • In your experience do you think this issue has improved in the UK in the last few years – are you seeing less haulage drink drive cases come across your desk?

 
 
According to the most recent Department for Transport provisional figures [2011; see below], a total of 256,101 drivers/riders were reported to have been involved in injury road accidents. This figure is 34% lower than the total number of drivers/riders involved in 2002 [390,479]. Just over half of those involved [54%] were required to take a breath test. This ratio (of requested breath tests to reported accidents) has remained constant for the last decade.
In 2002, 8,104 drivers/riders were deemed to have either failed to take the test or reported above limit levels of alcohol in their bloodstream. This represented 4.1% of all tests requested that year [196,253]. In 2011, 46% fewer failures occurred [4,366] among drivers/riders. This represents 3.1% of all tests requested that year, 1 percentage point lower than in 2002.


Drivers and riders in injury road accidents: breath tests and failures, Great Britain, 2002 to 2011
Our experience of the numbers of drink drive cases broadly match these figures.  We have seen less enquiries in the last year or two compared with 5 or 6 years ago.
 
In 2010, 13 breath tests were conducted per 1,000 population across England and Wales, but the rate for Wales (30 per 1,000 population) was more than twice of that for England (12 per 1,000 population). There was also a big variation in the number of tests carried out by individual police forces, from 1 per 1,000 in West Midlands to 43 per 1,000 in North Wales.   Figures takes from “Police Powers and Procedures, England and Wales 10/11”, Home Office, April 2012


 

  • Can employers do more – would they be allowed to insert clauses in employment contracts stating that if any driver is caught drink driving they will be sacked?

 
 
Employers have a general duty under the Health and safety at Work act 1974 to ensure, as far as is reasonably practicable, the health, safety and welfare of employees.  If an employer knowingly allows an employee under the influence of excess alcohol to continue working and this places the employee or others at risk, the company could be prosecuted
 
Companies could insert clauses into their contracts stating that a drink-drive offence is to be regarded as gross-misconduct.  In any event, it could be arguable that a driver subject to a 12 month drink drive ban is no longer able to do his job and could be dismissed on grounds of capability, although the possibility of alternative work should be considered.
 
Many organisations now operate workplace alcohol policies to ensure that employees are sober during working hours and to identify and help employees with a drink problem.  They are most commonly found among large farms and those which are safety-sensitive, such as transport.  Examples of employers with workplace alcohol policies include Ford Motor Company, the Royal Bank of Scotland, Marks & Spencers and Manchester City Council.
 
Employers who don’t have alcohol policies should draw them up in consultation with unions in the workplace.  Policies should cover topics such as tackling the causes of excessive drinking, confidentiality, counselling, screening, testing and occupational health services.
 
Employers could organise Drink and Drugs Awareness seminars for staff so as to highlight the risks to drivers before it happens.   However, if a driver has been convicted then the Traffic Commissioner would be looking to see how the Operator haws reacted to the problem. Across the board training would be one element of that reaction.
 
Some organisation conduct screening tests for alcohol and drug misuse, either on a random basis or as part of recruitment or if there is a reasons to suspect a particular individual has a problem. Screening does raise civil liberties issues and is only likely to be effective if developed with careful consultation with staff.  It should lead to help being provided for anyone with a problem, and be seen as a deterrent rather than a method of catching employees out


 

  • Do you know of any employer that has done this?

 
 
I understand that examples of employers with workplace alcohol policies include Ford Motor Company, the Royal Bank of Scotland, Marks & Spencers and Manchester City Council.
 
 

  • What are the legal guidelines regarding employers random testing their drivers or asking them to have breathalysers in their cab? Again – know of anyone doing this?

 
 
Breathalysers in the workplace are becoming increasingly common, especially in job where there is a risk involved and safety is paramount.
 
Alcohol screening is obviously a sensitive issue. Securing the agreement of the workforce to the principle is essential, partly because of the practical issues involved.  Screening is only likely to be acceptable if it can be seen to be part of a company’s occupational health policy and is clearly designed to prevent risks.
 
Implications of introducing screening
Agreement to the principle of screening should be incorporated in each contract.  For new staff, this is straightforward.  Existing staff, however, are under no obligation to agree to changes in their terms and conditions of service.  If an employer tried to force a test on an unwilling employee, there is a risk that the employee could resign and claim constructive dismissal.
 
In addition to changes to the contract of employment, it would be advisable for a company to obtain written consent for each individual test.
 
Testing requires a ‘chain of custody’ procedure to ensure samples are actually provided by the person being screened, samples cannot be tampered with, accurate laboratory analysis and interpretation is guaranteed and appropriate action is taken when a test result is positive.  Failure to have this chain of custody could mean the company comes unstuck if the sacked employee takes the company to tribunal.


 

  • Any other general/relevant thoughts on this issue would be much appreciated.

 
Proposed Changes in Legislation – For Testing Procedures for Drink and Drug Driving
A consultation closed in January of this year on the proposed legislative changes to drink driving law.  The consultation sought views about proceeding with:

  1. the withdrawal of the ‘statutory option’;
  2. changes as to when preliminary breath tests are needed;
  3. changes to the testing procedures in hospital;
  4. changes to who can assess whether someone is under the influence of drugs.

(a) The Statutory Option
The Government intends to remove a driver’s right to replace their breath alcohol specimen with either a specimen of blood, or specimen of urine, in cases where the lower of the two breath readings provided is not more than 50 mcg of alcohol per 100 ml of breath.
(b) Preliminary Breath Testing
The Government proposes that police officers can conduct an evidential breath test roadside, without the need for a preliminary screening test.
Currently approved evidential breath testing equipment is only available for use at a police station. However, Home Office type approval trials of portable evidential breath testing equipment are scheduled to start with decisions due in early 2014.
The change will avoid three breath specimens being sought at the roadside and reduce this requirement to two. The procedural change will only have effect when portable evidential breath testing equipment comes in.
The Government is also considering the introduction of a power to arrest for failing a roadside evidential test.
(c) Changes to Testing Procedures in Hospitals
In a police station, a medical practitioner or a registered healthcare professional can take evidential blood specimens for drink and drug driving investigations.  However, only medical practitioners can take blood specimens in hospitals.
The proposed change will allow registered healthcare professionals, in the absence of any objections, to take blood specimens for drink and drug driving investigations. This will allow nurses and paramedics to take evidential blood and urine specimens in hospitals.
(d) Changes to who determines whether the condition of a drug driving suspect is possibly due to a drug
It has been recommended that registered healthcare professionals also be allowed to advise police about whether a drug driving suspect has “a condition which might be due to a drug”.
Vehicle Forfeiture and Seizure in England and Wales
The Government is also examining the potential for courts to include vehicle seizure and forfeiture as part of the penalties for drink and drug drivers.
 
Other facts

  1. Apparently 1 in 5 drink drive offences occur the next morning
  2. Contrary to popular belief, eating a large breakfast the following morning can in fact mean that you could be over the drink drive limit for longer.  Apparently, the alcohol will get absorbed by the food and then is slowly released and therefore processed more slowly by the body, meaning potentially being over the limit for longer.
  3. There is no quick way of sobering up. It is a myth that drinking coffee or a cold shower can help you sober up. Time is the only thing that gets alcohol out of your body. If you intend driving a vehicle you could still be over the legal limit or unfit to drive many hours after drinking.



Other Considerations
 
Operators and  drivers  should  be  aware  that  operators  have  a duty  to  inform  the Traffic  Commissioner of the drink driving conviction with 28 days.
 
There  is a risk that the matter  could  be called  to a Public  Inquiry  depending on the facts.
 
Directors of companies with Operator’s Licences should  also be aware that their own drink  drive convictions are also potentially  notifiable  convictions for the Traffic Commissioner, even where they undertake no driving duties for the company.   The conviction could  go  towards   their  repute  to hold  a  licence.    The  same  applies  to partners in a partnership and sole traders.
 
The  driver  will also be subject  to a Driver’s  disciplinary hearing  in front  of the traffic commissioner. The Traffic Commissioner’s Statutory  Guidelines are as follows:

First
disqualification (excluding drink/drive offences)
Drivers covered by
New
Drivers Act (see above)
Call to a hearing Refuse vocational licence tor one month beyond the
restoration date
Applicants whose disqualification has ended in
the last 6 months.
Send a minded to refuse (for a period of
3 months) letter.
Existing licence
holders disqualified tor 12 months or
less
Warning letter
Existing licence
holders
disqualified tor more than 12
months and less than
3 years
(with no previous convictions,
conduct hearings or warnings)
Can agree to be
dealt with by correspondence or at a hearing
Disqualify from
holding a vocational licence tor up to 3 months on a sliding scale of one month per year of disqualification
More than 12 months
with
previous conduct history
Call to a
hearing
More than 3 years Call to a hearing

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