Motoring lawyer Jeanette Miller says innocent motorists could end up being convicted if the government’s proposed changes to drink-driving law go ahead. Here, she explains why.
The dangers of drink-driving are always highlighted around the festive period.
Drivers can get in a whole lot of trouble if they remain over the limit but choose to drive because they "feel alright".
While my team and I are frequently successful in defending drink driving cases, we haven’t quite mastered the miracle of turning the clock back.
So, the best advice to follow is simply to drink nothing at all if you know you are going to have to drive later on.
Don’t judge whether you are fit to drive by how you feel, especially if you have drunk alcohol that day or had heavy consumption the night before.
Current drink-driving law
If, for whatever reason, you are arrested for being over the limit, the law presently includes a number of safeguards for alcohol readings that are classed as borderline.
The drink-drive limit in breath is 35 microgrammes of alcohol in 100 millitres of breath.
Under present law, if you blow above the limit but between 36 and 50, the police must offer an option to replace the breath reading with a blood or urine test.
If a suspect chooses to accept this option a Health Care Professional (HCP) must take blood and in the case of urine, there are fairly complex procedures which must be followed by the police.
Changes in drink-driving procedures
The government has unveiled a number of proposals in a consultation due to close on 2 January 2013.
It wishes to do away with these optional tests as they argue that breath testing equipment is far more advanced than when the original legislation including this option was introduced.
A government report on the new drink driving proposals says: "It is not standard practice at all police stations to have an HCP in permanent attendance and Forensic Physicians still less so.
"Instead Forensic Physicians and HCPs are on call with a call-out regime possibly covering more than one police station.
"So often, it will be an hour or more before a blood sample is taken. Suspects have one hour to provide a urine sample from the time requested.
"Where Forensic Physicians or HCPs have had to be brought in, up to 25 per cent of statutory option cases result in blood or urine alcohol concentrations being below the prescribed limit."
There are a number of other proposals that I fear will remove some of the fairness of the current drink-driving procedures.
Currently, if a police officer stops you for suspected drink-driving, the breath test at the roadside cannot be used in evidence against you.
It is only a trigger to enable to police to arrest a suspect and take them back to the police station where the evidential breath blood or urine test is taken.
However, in a further effort to make life easier for the police in arresting suspects, the government wishes to introduce evidential roadside breath-testing.
Now, I am not against the idea of saving money and improving efficiency for the police.
However, the way the government has gone about making its proposals seems to be cloaked in secrecy.
Lack of information
There is a serious lack of information about the mechanics of the roadside breath-testing equipment that is proposed to be used.
The Forensic Science Service no longer exists so it would seem the Home Office plans to rely on manufacturers’ claims that equipment is accurate.
There is an obvious danger with this as without rigorous scientific involvement, things will inevitably go wrong.
I see first-hand how devastating this can be for someone with no criminal record ending up having to fight to prove their innocence against a machine reading that is clearly produced as a result of some form of malfunction.
The courts are loathe to find suspects not guilty in these circumstances as there is a reluctance to admit that breath-testing equipment can be wrong.
There is a further worry with the government’s plans as police officers will be expected to operate the instruments at the roadside.
This is a recipe for disaster as proper operation of an analytical instrument requires proper training, understanding of the instrument and rigorous quality assurance.
Other proposals currently under consultation relate to drug driving cases and allowing HCPs to perform impairment tests. At the moment only qualified doctors can do these.
There are also a number of proposals to allow the police to seize vehicles belonging to those arrested for drink-driving.
I have no doubt that if the government’s plans are implemented, we will see a huge rise in drink-driving convictions and many otherwise law abiding motorists will be classed as criminals.
Of course, maybe that isn’t such a bad thing? After all, does anyone actually agree with drink-driving?
The difficulty I have with all of this is I know that many of those convicted under the new regime will probably be innocent.
They may have to accept a prosecution because the costs and chances of fighting it are too grim.
Or they may believe, as the breath testing manufacturers will claim, that the device that took their reading was accurate.
Maybe the devices will be so advanced that they simply cannot malfunction but I suspect otherwise.
Lawyer and legal blogger Jeanette Miller is managing director at motoring law specialists Geoffrey Miller Solicitors.
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