Reducing the Drink Driving Limit in Scotland. A Scottish Government Consultation

Transcription

1 Reducing the Drink Driving Limit in Scotland A Scottish Government Consultation September 2012

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3 Reducing the Drink Driving Limit in Scotland A Scottish Government Consultation September 2012 The Scottish Government, Edinburgh 2012

4 Crown copyright 2012 You may re-use this information (excluding logos and images) free of charge in any format or medium, under the terms of the Open Government Licence. To view this licence, visit or Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned. This document is also available from our website at ISBN: The Scottish Government St Andrew s House Edinburgh EH1 3DG Produced for the Scottish Government by APS Group Scotland DPPAS13307 (09/12) Published by the Scottish Government, September 2012

5 Contents Ministerial foreword Chapter 1 Chapter 2 Chapter 3 Chapter 4 Chapter 5 Introduction and overview of effect of drink driving Drink driving legislation and procedures Consultation questions Other matters and next steps Further background information Consultation questionnaire Appendix A Appendix B Appendix C Appendix D Scottish Government consultation process Responding to this consultation paper List of consultees Respondent information form 3

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7 Ministerial Foreword Since we took office in May 2007, this administration has been clear that we want a lower drink driving limit as we believe that will save lives and help make Scotland s roads safer. Alcohol at any level impairs driving. So don t drink and drive is the right message to motorists. Tragically, figures show that it is estimated that just over 1 in every 9 deaths on Scotland s roads each year involve drivers who are over the legal drink driving limit with an estimate of an average of 30 deaths on Scotland s roads caused by drivers over the legal limit every year. That is 30 deaths too many, and we are proposing action to help reduce this number. Far too many drivers still ignore the warnings and put lives at risk by drinking and driving. The consequences can be devastating for victims, their families and our communities. Having repeatedly asked the UK Government to take action to reduce the drink driving limit for Scotland, it is only now with recently secured powers through the Scotland Act 2012 that the Scottish Government is able to set the drink driving limit in Scotland. We pressed the UK Government for a more extensive set of powers over drink driving to be given to the Scottish Government such as being able to change the penalties for drink driving and introduce the ability for the police to breath test anytime anywhere, but this was not granted by the UK Government. This consultation seeks views on one key drink driving proposal. We are seeking your views on reducing the drink driving limit to a level which would bring Scotland into line with most of the rest of Europe and which will help save lives on our roads. Although the Scottish Government has not been given associated powers relating to drink driving, we are happy to receive any additional suggestions on other measures that may be considered in order to tackle the scourge of drink driving. We urge those who have an interest in road safety matters to respond to this consultation. Kenny MacAskill MSP Cabinet Secretary for Justice Keith Brown MSP Minister for Housing and Transport 5

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9 CHAPTER 1 Introduction 1.01 The consequences of drink driving can be tragic Transport Scotland s Reported Road Casualties Scotland estimate that just over one in nine deaths each year on Scotland s roads is the result of drink driving In 2009 there were 30 fatalities and 920 casualties estimated to be due to drink driving. For the period , it is estimated that on average each year there were 30 fatal accidents, 130 serious accidents and 520 minor accidents that were the result of drink driving These figures demonstrate that Scotland has a continuing problem with drink driving and it is a problem the Scottish Government is determined to address Drink driving remains a constant hindrance to efforts in Scotland to make our roads and communities safer and continues to be the cause of far too many accidents, injuries and deaths on our roads. Overview of the effect of drink driving 1.06 Transport Scotland s Reported Road Casualties Scotland publication is produced each year and provides detailed statistics about a range of matters related to the impact of drink driving including road accidents, accident costs, the vehicles involved, drivers and riders drink-drive accidents, drivers breath tested and casualties The 2010 publication includes the latest data available for drink driving relating to the year 2009 (data for the year 2010 will be included in the Reported Road Casualties Scotland Report 2011 which is due to be published October 2012) Information contained in the 2010 publication relating to the estimated number of reported drink drive accidents and casualties is provided on page 8 of this consultation paper When considering the data summarised on the following pages, it should be kept in mind that there are no estimates for Scotland of the number of alcohol-related injury road accidents where legal alcohol levels are involved (i.e. where accidents have occurred and where alcohol may be in the driver s system but at a level below the drink drive limit). There are also no estimates for Scotland of the numbers of non-injury (i.e. damage only) road accidents involving illegal alcohol levels

10 ESTIMATED NUMBER OF REPORTED DRINK DRIVE ACCIDENTS AND CASUALTIES (SCOTLAND), 1994 TO 2009 Number of accidents Number of casualties Year Fatal Serious Slight Total Killed Serious Slight Total average , , , , , , , average Note: individual columns may not sum to totals due to rounding 8

11 1.10 The UK Government s Department for Transport produce annual estimates 2 for the cost of injury road accidents in Great Britain. These estimates can be applied to accidents in Scotland The Reported Road Casualties Report 2010 provides overall cost estimates for injury accidents in Scotland. Applying these cost figures over a four year period ( ) to the estimates of drink drive accidents on page 8 of this consultation would indicate an estimated average total cost of around 80m per year for drink drive injury accidents in Scotland. COST PER ACCIDENT BY ROAD TYPE AND SEVERITY IN SCOTLAND ( ) FOR 2010 (AT 2009 PRICES) Category of road Accident Severity Fatal Serious Slight Average for all injury accidents Damage only Average for all accidents Non built-up roads 1,927, ,964 22, ,251 2,617 17,348 Built-up roads 1,706, ,176 18,998 59,192 1,769 4,840 Motorways 1,604, ,566 26,753 66,146 2,517 9,916 Trunk roads only 2,006, ,019 22, ,490 2,362 14,152 All roads 1,855, ,303 20,306 84,693 1,949 7,

12 1.12 The table below provides information recorded by the police for period 2006/07 to 2011/12 on the number of driving under the influence offences broken down into individual crime-codes While there has been a welcome reduction in the number of drink drive convictions in recent years, it is still the case that a high number of drivers opt to get behind the wheel while under the influence, posing a danger to innocent road users by ignoring the warning and putting lives at risk. DRINK DRIVING OFFENCES 2006 TO 2012 Year Offence Driving motor vehicle while unfit through drink or drugs 3 In charge of motor vehicle while unfit through drink/drugs Driving motor vehicle 7,652 7,177 6,774 5,840 4,979 4,889 with blood alcohol content above prescribed limit In charge of motor vehicle while blood alcohol content above limit Failure to provide 1, breath specimen at roadside Failure to provide 1,385 1,191 1, breath, blood or urine specimen at police station Total 11,704 10,697 9,800 8,504 7,563 7,445 3 Please note it is not possible to separate the drink related offences from the drug related offences for the following crime-codes: Driving motor vehicle while unfit through drink or drugs and In charge of motor vehicle while unfit through drink/drugs. 10

13 CHAPTER 2 Drink driving legislation and procedures 2.01 This chapter provides an overview of drink driving legislation including current offences and penalties. It also provides some general information in relation to the screening and testing procedures that are applied when a driver is suspected of drink driving. This will help aid understanding of the overall road safety and criminal law context within which the drink driving limit operates and inform consideration of the consultation questions in chapter 3. Current drink drive limits 2.02 Drink drive limits relate principally to the offence under section 5 of the Road Traffic Act ( the 1988 Act ) of driving, attempting to drive, or being in charge of a motor vehicle after consuming so much alcohol that the proportion of it in the breath, blood or urine exceeds the prescribed limit. There is a separate offence under section 4 of the 1988 Act of driving, attempting to drive or being in charge of a vehicle while unfit to drive through drink or drugs Proof of the section 4 offence depends on establishing that ability to drive is impaired on a case-by-case basis whereas proof of the section 5 offence requires evidence of a person s proportion of alcohol exceeding the prescribed limit with no separate requirement to prove impairment The current prescribed drink drive limits in the UK are set out in section 11 of the 1988 Act. The limits are: 80 milligrammes (mg) of alcohol in 100 millilitres (ml) of blood (the blood limit ), 35 microgrammes (mcg) of alcohol in 100 ml of breath (the breath limit ); and 107 mg of alcohol in 100 ml of urine (the urine limit ) There are these three different drink limits in legislation and this dates back to when the current blood limit was first introduced in the 1960s. At that time a person who was suspected of drink driving would be subjected to a breath test. If the reading provided by the person was positive, the person would be required to provide a blood or urine specimen to confirm the level of alcohol present in the person s body Drink driving law and procedure has evolved over the years and breath testing is now recognised as the most commonly used test that is carried out by police. However, it remains the case that under the current law it is possible, dependant on the circumstances, for breath, blood or urine testing to be carried out to determine whether a person is over the prescribed limit for

14 drink driving. Any change made to one of the limits must also therefore be reflected in equivalent changes being made to the other limits Prosecutions generally proceed on the basis of an analysis of the breath limit. However, there are circumstances - for example if there isn t a working breath analysis device available - in which the police may require the driver to provide a specimen of blood or urine. There are also circumstances - for example where the driver may be incapable of providing a breath specimen - in which the driver may elect to provide a specimen of blood or urine. In that event the blood or urine limit will be relied on The subject matter of the 1988 Act is generally reserved by the Scotland Act This means the power to prescribe differential drinkdriving limits (for example, a different limit for drivers who have recently passed their driving test), the creation of new offences, the level of penalties associated with offences and breath testing provisions are reserved to the UK Parliament The Scotland Act 2012 ( the 2012 Act ) 5 devolved the power to prescribe the drink-driving limits in Scotland to the Scottish Government and it is the use of this power to reduce the drink driving limit which we are seeking views on in this consultation Along with the offence of breaching prescribed limit found within section 5 of the 1988 Act, there is also an offence of causing death by careless driving with an alcohol concentration above the prescribed limit (section 3A(1)(b) of the 1988 Act). Should we decide to change the drink driving limit following this consultation, the consequence would be that the prescribed limit which triggers the section 5 offence and the prescribed limit which triggers the section 3A offence will both be altered. The statutory option 2.11 Drivers who have given an evidential sample of breath have a legal right to ask for the evidential sample to be substituted with either a sample of blood or urine. This right was introduced to address an historical concern on the reliability of evidential breath testing devices and also to take account of individual variability in the ratio of alcohol in breath to that in blood. Section 8(2) of the 1988 Act provides that all drivers whose evidential breath sample reading is over the prescribed breath limit of 35 mcg of alcohol per 100 ml of breath and below 50 mcg of alcohol per 100 ml of breath are entitled to ask for either a blood or urine sample to be used instead of the breath sample. This option for drivers is commonly known as the statutory option Section 8(3) of the 1988 Act provides a power for the Scottish Ministers (by virtue of the Scotland Act 2012) to substitute a breath reading level for Scotland where the statutory option is available to drivers. Presently, the statutory option is available 15 mcg of alcohol per 100 ml of breath above the

15 current limit of 35 mcg of alcohol per 100 ml of breath. The statutory option is therefore available up to where a breath reading is approximately 43% above the legal breath limit If we decide to establish a reduced drink driving limit for Scotland following this consultation, we intend to adjust the point at which the statutory option is available to drivers to maintain equivalence with the (new) Scottish drink driving limit i.e. the statutory option will remain available approximately 43% above the new lower limit. In practice, this would mean that if a new lower limit of 22 mcg of alcohol per 100 ml of breath is introduced, our intention would be that the statutory option would be available for drivers who provide a breath sample between 22 mcg of alcohol per 100 ml of breath and 31 mcg of alcohol per 100 ml of breath. Ratio between the drink drive limits 2.14 The ratio that establishes in law the relationship between alcohol concentrations in breath and alcohol concentrations in blood is set at 2300:1. This is why a blood alcohol concentration of 80 mg/100 ml is equivalent to a breath alcohol concentration of 35 mcg/100 ml. The ratio that establishes in law the relationship between alcohol concentrations in blood and alcohol concentrations in urine is based on an average ratio of 3:4. This is why the current urine alcohol concentration legal limit is 107 mg/100 ml as this is equivalent to a blood alcohol concentration of 80 mg/100 ml We are aware that there is some debate as to at what levels the ratios should apply. However, for the purposes of considering reducing the drink driving limits in this consultation, we have no plans to alter the existing ratios used to calculate the limits and therefore the existing ratios are used in calculating the lower limits we are proposing. Police powers under the Road Traffic Act The police have a general power under section 163 of the 1988 Act 6 to stop any vehicle at any time. For example, if the police were conducting spot checks for the purposes of a criminal investigation they could ask the driver to stop their vehicle. However, the police cannot stop vehicles and conduct a breath test without reason as they have no powers to do so Under section 6 of the 1988 Act 7, the police may require a person to take a preliminary test. This is the first part of a drink drive investigation and is often administered at the roadside by the police who use a testing device to help determine whether a person has been drink driving. The police may administer a preliminary test if they reasonably suspect that a person:

16 is driving, is attempting to drive or is in charge of a motor vehicle on a road or other public place, and has alcohol or a drug in his/her body or is under the influence of a drug; has been driving, attempting to drive or in charge of a motor vehicle on a road or other public place while having alcohol or a drug in his/her body or while unfit to drive because of a drug, and still has alcohol or a drug in his/her body or is still under the influence of a drug; is or has been driving, attempting to drive or in charge of a motor vehicle on a road or other public place, and has committed a traffic offence while the vehicle was in motion The police may also require a person to take a preliminary test where an accident occurs owing to the presence of a motor vehicle on a road or other public place, and they reasonably believe that the person was driving, attempting to drive or in charge of the vehicle at the time of the accident A person commits an offence if, without reasonable excuse, they fail to co-operate with a preliminary test (section 6 of the 1988 Act) One of the preliminary tests permitted is a preliminary breath test, which is provided for in section 6A of the 1988 Act 8. The purpose of the breath test is to determine whether the proportion of alcohol in the person s breath is likely to exceed the prescribed limit Section 6B of the 1988 Act provides for a preliminary impairment test. This is a screening test which is designed to indicate whether a person is unfit to drive and whether the unfitness is likely to be due to drink (or drugs). The test, known as the Field Impairment Test, may be administered either following, or as an alternative to, a breath test The police may opt to administer the Field Impairment Test where the breath test indicates that the proportion of alcohol in the person s body is below the prescribed limit but the person is still showing signs of unfitness to drive, or where it is not possible to administer a roadside breath test, for example if the breathalyser device is not working properly Where the police have reasonable grounds for believing that the person may be driving while unfit to do so through drink (or drugs), either as a result of the Field Impairment Test or where the police has formed such a suspicion on account of other observations, they may arrest the person if they have reasonable cause to suspect that that person is or has been committing an offence under section 4 of the 1988 Act Section 6D of the 1988 Act 9 provides the police with an explicit power of arrest where, following the completion of the preliminary breath test, they

17 reasonably suspect that the proportion of alcohol in a person s breath or blood exceeds the prescribed limit Such suspicion will arise where the result of the breath test indicates that a person is over the breath limit. In the event of a driver being over the breath limit, the driver will be arrested and taken directly to a police station in order for the police to carry out further (evidential) tests. It should be noted that, dependant on the circumstances, it may be necessary and appropriate for evidential tests (blood and urine) to be conducted elsewhere, for example a hospital if the driver was unable to provide a breath test due to medical reasons The evidential tests carried out at the police station will generally involve the analysis of two specimens of breath by a type of device approved by the UK Government. Under section 7(1) of the 1988 Act, the police can require the person to provide two breath samples for this purpose. The device produces printouts showing the proportion of alcohol present in each specimen. The higher of the two readings is disregarded and the printout showing the lower reading can be relied on for evidential purposes in any subsequent prosecution In certain circumstances the police can also require the person to provide a sample of blood or urine for analysis, in which event a certificate signed by the analyst can be relied on in a subsequent prosecution. As noted previously, a statutory option exists for a person who has undergone breath analysis whereby they can elect to be assessed against the blood or urine limits (i.e. they can request to provide a specimen of blood or urine and to have the analysis of that sample relied on instead). This statutory option is available where the result of the breath analysis is a reading between the breath limit (35 mcg of alcohol in 100 ml of breath) and 50 mcg of alcohol in 100 ml of breath It is an offence if a person fails, without reasonable excuse, to provide a specimen under the requirements of section 7 of the 1988 Act. Breath testing data 2.29 Transport Scotland publishes information regarding breath test data that covers motorists who were known to be involved in injury road accidents (excluding untraced drivers involved in hit and run accidents). Their Reported Road Causalities Report 2010 provides information on whether a roadside breath test was requested and if so whether it was positive/negative test or a refused test As explained above, the roadside breath test is only an indicator of the possibility of drink driving (with the full evidential test being relied upon for use in any subsequent prosecution). The breath test figures published in Reported Road Casualties do not therefore show levels of drink driving in 15

18 relation to accidents where an injury has occurred, but can be used as an indicator of trends The data shows that in 2010, 59% of motorists involved in injury accidents were asked for a breath test (this ranged from 53% to around 81% across the police forces). The breath test proved positive (or the motorist refused to take the test) for 347 motorists or some 3.6% of those drivers tested. This represented 2.1% of the total number of motorists involved in injury accidents (including those who were not asked for a breath test). This proportion has been steady over the past five years In 2010, some 45% of the 347 positive/refused cases occurred between 2100 hours and 0300 hours with 66 between 2100 and 0000 and 89 between 0000 and The number of positive/refused cases, expressed as a percentage of motorists involved in accidents, was highest (at around 16%) between 0000 and 0600, but varied depending upon the day of the week, from 11% (the average for the period 0300 to 0600 Mondays to Thursdays) to 22% (the average for the period 0300 to 0600 on Saturdays). Although the period from 2100 to 0000 had the second highest number of positive/refused cases on any given day of the week, the equivalent percentages were not as high as it should be noted that between 2100 and 0000 there were many more motorists in accidents than between 0000 and More detailed information regarding breath test data contained in the 2010 report is broken down into three headings: Breath tests by force area 10, breath tests by time of day, and breath tests by day of the week 11, and breath tests by time of day 12. Offences and associated penalties 2.35 Road traffic offences and associated penalties are generally reserved to the UK Government. There a range of disposals available to the courts if a person is convicted of driving or attempting to drive: while above the legal alcohol limit, while impaired by alcohol or drugs, failing to provide a specimen of breath for analysis or a specimen of blood or urine for a laboratory test

19 2.36 Upon conviction, a driver will receive a criminal record and expect to receive: being imprisoned for up to 6 months; a fine of up to 5,000; automatic loss of licence with a minimum 12 month driving ban; an offence which stays on their licence for 11 years; possible loss of their vehicle (under the vehicle forfeiture scheme) 2.37 Causing death by careless driving while under the influence of drink and/or drugs may result in a minimum 2 year driving ban, up to 14 years in prison and/or an unlimited fine Sections 92 to 96 of the Road Traffic Act 1988 provide a statutory framework in relation to the physical fitness of drivers. Certain drivers convicted of alcohol related offences - for example repeat drink driving offenders or where a driver had an alcohol level which was at least 2 and a half times the current legal limit - are classed as high risk offenders under the Motor Vehicles (Driving Licences) Regulations Prior to a high risk offender completing their driving ban, they are required to undertake a medical check by DVLA before they can reapply for their licence. The purpose of this requirement is to identify those drivers whose apparent dependency on alcohol would likely present an ongoing risk to road safety if they were to be successful in reapplying for their licence When a person is convicted of a drink driving offence, an automatic electronic update is sent from the court to the DVLA, including the details of the disposal and, where relevant to the charge, the alcohol level If it is decided that the drink drive limit should be reduced in Scotland following this consultation, we will discuss with the UK Government whether changes are required to the 1999 regulations to reflect the new Scottish lower drink drive limit in terms of the operation of the high risk offenders scheme. 17

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21 CHAPTER 3 Consultation questions - Scottish Government proposal to reduce the drink driving limits 3.01 As discussed in chapter 2, the current drink driving limits are: 80 mg of alcohol in 100ml of blood (the blood limit ), 35 mcg of alcohol in 100 ml of breath (the breath limit ); and 107 mg of alcohol in 100 ml of urine (the urine limit ) Prosecutions generally proceed on the basis of an analysis of the breath limit. However, there are circumstances in which the police may require the driver, or in which the driver may elect, to provide a specimen of blood or urine. In that event the blood or urine limit will be relied on There are three different limits in legislation. This dates back to when the current blood limit of 80 mg was first introduced in the 1960s. At that time a person who was suspected of drink driving would be subjected to a breath test. If the reading provided by the person was positive, the person would be required to provide a blood or urine specimen to confirm the level of alcohol present in the person s body Our central message on drink driving is simple - don t drink and drive. This is because people cannot accurately estimate a safe level of alcohol consumption and it is better not to drink at all rather than try and estimate a safe level of alcohol before deciding to drive. This is also because it has been shown that any alcohol in your body can adversely affect how you drive The relationship between alcohol consumption and how the body absorbs alcohol is not an easy one because the way in which the body absorbs and eliminates alcohol is complicated and it is clear that people can be confused about the relationship between units of alcoholic drinks and the legal drink drive limit. A zero limit or near zero limit would bring difficulties in terms of people s response to alcohol varying with a range of matters including age, gender, weight, time of day, the time taken to consume alcohol and whether they have eaten By setting the limit at where considerable impairment to driving is shown likely to take place, we can avoid criminalising drivers who may have the remnants of alcohol in their system even though it is quite some time since they had a drink or they drank very little and where there is no significant impairment to their driving What is certain is that driving a vehicle is a complex task requiring a high level of concentration and alertness at all times. It is important drivers do not use their vehicles when their performance is likely to be impaired for any reason whether that is through alcohol, drugs or indeed fatigue. 19

22 3.08 In 2009, the then UK Government requested that an independent review of drink and drug driving law be carried out. For this purpose, the North Review Committee, led by Sir Peter North CBE QC, was established and they published their recommendations in the summer of The North Report 13 of the Review of Drink and Drug Driving Law indicated that a lower drink limit of 50mg of alcohol in 100ml of blood would help save lives Paragraph 4.17 of the North Report stated: The estimates of the potential for a lower limit of 50 mg/100 ml to save lives vary. On the one hand, Professor Richard Allsop estimates, with conservative assumptions, that 43 lives could be saved in Great Britain annually, NICE on the other hand makes more ambitious estimates, based on the experience of research conducted in Europe and in Australia. NICE applies their model to all road traffic casualties in England and Wales rather than just those reported as drink driverelated. Based on the Albalate study of European countries, although without a defined time horizon, lives could be saved each year in England and Wales whereas, based on the Australian experience, 144 lives could be saved after the first year in England and Wales, progressively increasing by the 6th year to a total of up to 303 deaths avoided. These estimates for England and Wales take no account of the possible casualty savings for Scotland. It should be noted that Scotland represented 7% of all drink drive-related casualties in Great Britain in As can be seen, a range of studies are mentioned in the North Report and an analysis applied to England and Wales figures. Apportioning these figures for a lower Scottish drink driving limit would suggest a range of between 3 and 17 fewer deaths per year Paragraph 4.12 of the North Report indicated that evidence showed drivers are six times more likely to die with a blood alcohol concentration level between 50 and 80 milligrammes than with zero blood alcohol. In addition, evidence submitted in by the British Medical Association to the House of Commons Transport Committee's inquiry into drink and drug driving law indicated that the relative risk of being involved in a road traffic crash for drivers with a reading of 80mg of alcohol per 100ml of blood was 10 times higher than for drivers with a zero blood alcohol reading. The relative crash risk for drivers with a reading of 50mg of alcohol per 100ml blood was twice the level than for drivers with a zero blood alcohol reading v.uk/docs/northreview-report.pdf

23 3.12 Paragraph 4.27 of the North Report advised: The Review has received strong support for a BAC limit of 50 mg/100 ml from the majority of consultees to the Review. There is also evidence to indicate that the public mood is supportive of the current limit being reduced to 50 mg/100 ml. The number of deaths and serious injuries that such a change would avoid is, even on the more conservative estimates, very considerable This evidence led to the North Report recommending that the drink driving limits should be reduced. The UK Government has not acted on this recommendation, but the Scottish Government strongly agrees with the opinion of the North Report that a reduction in the drink drive limit will save lives We believe that a lower limit will help enable the police to arrest drivers where they pose a risk with alcohol in their bodies but as they currently fall below the existing limit, the police cannot arrest them. A new lower limit can also have a deterrent effect and help to positively influence drivers and their alcohol drinking behaviour Lowering the legal drink drive limit would send a clear message that people should not drink and drive As noted previously in this consultation, alcohol concentrations can be measured in different ways - in breath, in urine and in blood and therefore we are consulting on a new proposed lower drink drive limit for blood and consequential equivalent reductions in the breath and urine limit. QUESTION 1 Do you agree that the drink drive limits should be reduced in Scotland? If yes, please go to Q1A. If no, please go to Q2. 21

24 QUESTION 1A The Scottish Government is proposing: A reduction in the blood limit from 80 milligrammes of alcohol in every 100 millilitres of blood to 50 milligrammes of alcohol in every 100 millilitres of blood An (equivalent) reduction in the breath limit from 35 microgrammes of alcohol in 100 millilitres of breath to 22 mcg of alcohol in every 100 millilitres of breath, and An (equivalent) reduction in the urine limit from 107 milligrammes of alcohol in 100 millilitres of urine to 67 mg of alcohol in every 100 millilitres of urine. Do you agree with the SG proposal to reduce the drink drive limits? (OPTIONAL QUESTIONS) QUESTION 2 Do you have any evidence for what would be the main consequences of the SG proposals? QUESTION 3 Do you have any evidence for what would be the financial impact of the SG proposals? 3.17 Paragraphs 2.11 to 2.15 of this consultation explain that if the Scottish Government decides to reduce the drink driving limit for concentrations of alcohol in blood, there will be no change to the ratio used in calculating the equivalent limit for concentrations of alcohol in breath and urine. Paragraphs 2.11 to 2.15 also explain that the availability of the statutory option will remain consistent with existing policy and the only change made to the statutory option will be a consequential, technical change to reflect the new lower breath limit. QUESTION 4 Do you have any comments to make on the ancillary matters related to the SG s proposal to reduce the drink drive limits? 22

25 Partnership approach to tackling drink driving 3.18 A partnership approach across agencies is critical to tackling the scourge of drink driving in Scotland. Drink driving is a key risk behaviour identified within Scotland s Road Safety Framework to and a number of partners have been involved in tackling the issue For many years, Road Safety Scotland (part of Transport Scotland) has worked closely with Association of Chief Police Officers in Scotland (ACPOS) to raise and maintain public awareness of drink and drug driving issues, engaging in high-profile campaigns to coincide with ACPOS enforcement activity The Scottish Government has worked closely with the Crown Office and Procurator Fiscal Service (COPFS), Scottish Courts Service (SCS), ACPOS and Road Safety Scotland to drive forward anti-drink/drug drive work through operation of the Vehicle Forfeiture Scheme Section 33A of the Road Traffic Offenders Act 1988 gives powers to the courts to forfeit vehicles of drivers convicted of certain offences, including drink-driving. Under this Act, the COPFS has the power to ask the court to seize vehicles for all imprisonable road traffic offences and for offences of culpable homicide involving a motor vehicle In Scotland, recent drink driving campaigns have focused on the vehicle forfeiture scheme. The 2009 ACPOS Festive Drink Drug Driving Campaign introduced new enforcement measures through the vehicle forfeiture scheme so that drivers caught drink driving for a second time could have their vehicles taken away. These measures were first introduced in December 2009 and extended in the summer in 2010 to also include drug drivers In 2011 the scheme was further extended to include first time offenders who were found to be more than three times over the drink drive limit and those who refused to provide a sample for analysis without a reasonable excuse The scheme allows the police and the COPFS to ask the court for authority to seize the vehicles driven by any driver who: is caught drink or drug driving and has a previous or pending drink or drug driving offence within the last five years, or provides a reading of three times the drink drive limit or more, or fails to provide a specimen for analysis

26 3.25 By the end of 2011, 710 vehicles had been seized in Scotland with a view to seeking forfeiture through the courts. Forfeited vehicles are either sold at auction or crushed While this paper focuses on our proposal to reduce the drink drive limit in Scotland, we are happy to receive any suggestions on other measures that should be considered in order to tackle the scourge of drink driving. QUESTION 5 Are there any other measures that should be considered in order to tackle drink driving? 24

27 CHAPTER 4 Other matters and next steps 4.01 Following this consultation, if the Scottish Government decides to lower the drink drive limits in Scotland, we will bring forward secondary legislation for consideration in the Scottish Parliament at an early opportunity. Financial implications 4.02 If we decide to bring forward secondary legislation, we will produce a Business and Regulatory Impact Assessment (BRIA) The BRIA is a tool used to assess and present the likely costs and benefits (monetised as far as possible) and the associated risks of a proposal that might have an impact on the public, private or third sector. It is a continuous process to help Government understand the issues associated with a proposal and avoid unintended consequences, fully think through the reasons for intervention, to weigh up various options for achieving an objective and to understand the consequences of a proposed intervention. Environmental considerations 4.04 The Scottish Government does not consider there to be major environmental implications from the proposals contained in this consultation paper. If the Scottish Government should decide to reduce the drink drive limits, we will carry out a pre-screening exemption from Strategic Environmental Assessment (SEA) requirements. 25

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29 CHAPTER 5 Further background information Impairment 5.01 There is clear evidence that alcohol impairs the cognitive and motor skills required for safe driving and there is now a wealth of research (DHS 2008) indicating that the impairment begins with any departure from zero blood alcohol concentration (BAC) While people metabolise alcohol at different rates and react differently to alcohol, evidence shows that drivers will generally react in broadly similar ways to alcohol consumption. The following is included to indicate the progressive nature of intoxication and impairment. Alcohol Level 20mg - 50mg: Judgement of distance and speed of oncoming vehicles is affected. Drivers will tend to take greater risks, particularly in dangerous manoeuvres such as overtaking or driving too close to the vehicle in front. Alcohol Level 50mg - 80mg: Vision is affected, slowing reactions to red lights and tail lights. Drivers are more likely to drive too fast and to misjudge distances when approaching bends. Motorcyclists will find it difficult to drive in a straight line. Alcohol Level 80mg +: Drivers will overestimate their own ability. Vision is so affected they may not notice cyclists, pedestrians or parked vehicles in sufficient time to avoid them Alcohol is typically eliminated from the system at a rate of about one unit per hour. If you have had a lot to drink the night before, your blood alcohol level may well still be in excess of the legal limit the next morning. There is nothing that can be done to speed up the elimination process or sober up. For example, drinking tea or coffee, exercising, taking a shower or eating will make no difference to a person s BAC In a review of 112 studies into the Effects of Low Doses of Alcohol on Driving Related Skills, Moskovitz and Fiorentino (2000) concluded that there is no BAC level at which impairment does not occur. They found that at under one-eighth of our legal limit both basic driving skills and divided attention ability (the ability to focus simultaneously on different sources of information on the road) were found to be impaired in half or more of the behavioural tests. 17 Evidence showed that impaired drivers tended to focus more on the most basic activities, such as steering, to the detriment of other key driving skills. 16 German Centre for Addiction Studies (DHS), Reducing Drinking and Driving in Europe, Hamm, DHS 17 Moskowitz, H. and Fiorentino, D. (2000) A review of Literature on the Effects of Low Doses of Alcohol on Driving- Related Skills, DOT HS , U.S. Department of Transportation, National Highway Traffic Safety Administration, Washington, DC. 27

30 Collision risk 5.05 Due to differences in driving factors and conditions and the methodologies used, estimates vary of the precise extent to which alcohol increases crash risk. However, numerous studies demonstrate that even moderate amounts of alcohol increase the risk of collision. Results of studies have repeatedly demonstrated that there is a clear relationship between relative crash rate and BAC level. As BAC increases, so too does the risk of being responsible for collisions (Hole 2007) Such studies compare the BACs of drivers in collisions with the BACs of drivers not involved in collisions. Borkenstein (1964) 19 demonstrated that at BAC levels between 50mg/100ml and 100mg/100ml a driver is twice as likely to be involved in a collision. Kruger (2004) 20, in a more recent study, found that a driver with between 50mg/100ml and 80mg/100ml alcohol was nearly three times more likely to have a collision than someone with a zero BAC Research by Compton (2002) indicates that the crash rate per kilometre driven for a driver with 80mg/100ml alcohol in his blood (the current legal limit) is approximately 2.7 times higher. 21 Zador (2000) found that at BACs between 20mg/100ml and 49mg/100ml drivers were at least three times more likely to die in a single vehicle crash and that this increased to at least six times with a BAC between 50mg/100ml and 79mg/100ml. 22 Younger drivers 5.08 Younger drivers, in particular, are hampered by a lack of experience, by an often inaccurate assessment of their level of competence and by the effects of alcohol on their ability to drive, to make prudent choices, and on their behaviour There is clear evidence (Keall et al. 2004) that low doses of alcohol (below 50mg/100ml) have a much stronger effect on younger drivers (24 years of age and younger) than on older drivers US research confirmed the greater impact of alcohol on young people s risk levels, including at levels below 50mg/100ml. For example, at zero BAC a driver aged has a 1.79 times greater crash risk than a driver aged Hole, G (2007) The Psychology of Driving; Lawrence Erlbaum Associates.. 19 Borkenstein, RF, Crowther, FR, Shumate, RP, Ziel, WB, and Zylman, R, (1964). The role of the drinking driver in traffic accidents. Illinois: Indiana University, Dept of Police Administration 20 Kruger, HP and Vollrath, M, (2004). The alcohol-related accident risk in Germany: Procedure Methods and Results. Accident Analysis and Prevention, 36, Compton, R.P., Blomberg, R.D., Moskowitz, H., Burns, M., Peck, R.C. & Fiorentino, D. (2002) Crash rate of alcohol impaired driving. Proceedings of the sixteenth International Conference on Alcohol, Drugs and Traffic Safety ICADTS, Montreal. 22 Zador, P. L., Krawchuk, S. A., & Voas, R. B. (2000). Alcohol-related relative risk of driver fatalities and driver involvement in fatal crashes in relation to driver age and gender: An update using 1996 data. Journal of Studies on Alcohol, 61, Keall, M., Frith, W. & Patterson, T. (2004) The influence of alcohol, age and number of passengers on the nighttime rate of driver fatal injury in New Zealand. In: crash Analysis & Prevention, Vol. 36 p

31 49. This rises to a 2.48 times greater risk at 40 50mg/100ml (Preusser 2002) Studies have also indicated that the relative risk of a younger driver sustaining fatal injuries increases much more quickly with each alcoholic drink. A Norwegian study (Glad 1985), for example, found that the fatality risk for an year old driver with a BAC at or above 50mg/100ml is significantly increased While drink driving is certainly dangerous at all ages, the impact on young drivers is even more severe. Research also shows that at the age of 18 areas of the human brain which are responsible for the integration of information and impulse control are still developing In considering a younger person s general competence to drive there is also a need to take into consideration social maturity and other psychological factors - for example, reaction to peer pressure and impulse control, which can be further impaired by the use of alcohol. International blood alcohol concentration limits 5.14 In 2001, the European Commission recommended a European-wide blood alcohol limit not exceeding 50mg/100ml. and 20mg/100ml for new and professional drivers. Since the European Commission recommendation was made, Cyprus, France, the Netherlands, Germany, Luxembourg and the Republic of Ireland have all made changes to reduce drink driving limits in line with the recommendation Preusser, D.F. (2002) BAC and fatal crash rate. In: ICADTS 2002 Symposium Report 'The Issue of Low BAC', p Glad, A. (1985), Research on Drinking and Driving in Norway: A Survey of Recent Research on Drinking and Driving and on Drinking Drivers, Transportøkonomisk Institutt (TØI), Oslo. 26 European Road Safety Observatory, 27 European Transport Safety Council, 29

32 Public attitudes to drink driving DRINK DRIVING LIMITS ACROSS EUROPE Country Legal blood alcohol concentration limit (per mg in 100ml of blood) Austria 50 Belgium 50 Bulgaria 50 Cyprus 50 Czech Republic 0 Denmark 50 Estonia 0 Finland 50 France 50 Germany 50 Greece 20 Hungary 0 Republic of Ireland 50 Italy 50 Latvia 50 Lithuania 40 Luxembourg 50 Malta 80 Netherlands 50 Poland 20 Portugal 50 Romania 0 Slovakia 0 Slovenia 50 Spain 50 Sweden The Scottish Government s The Public and the Justice System: Attitudes, Drivers and Behaviour Literature Review 28 looked at driver behaviour and attitudes towards drink driving. 72% of those who responded to the study either strongly agreed or slightly agreed that the legal limit for alcohol when driving should be reduced to discourage people from drinking when they are drinking The UK Government Department for Transport s British Social Attitudes Survey 2011 report 29 revealed that some 86% of respondents agree that someone should not drive if they have drunk any alcohol with 77% agreeing that most people don t know how much alcohol they can drink before being over the limit

33 5.17 The UK Government Department for Transport s Road Safety Research Report No. 122 Attitudes to Road Safety: Analysis of Driver Behaviour 30 revealed that 74% of those who responded to the study agreed that drivers should not drink any alcohol before driving The July 2012 poll 31 conducted by the Institute of Advanced Motorists revealed that 66% of respondents wanted to see the drink drive limit reduced The Scottish Government published a report in March that provided an insight into behaviour and attitudes relating to drink driving. Some of the key findings included: Men, people aged 30 to 59, and people in higher social grades were more likely to have driven after drinking. Drivers often said they thought they were under the legal limit and their driving ability was unaffected. There was confusion as to how the number of drinks or units related to legal limits One of the key recommendations from the 2008 research was to consider lowering the legal drink drive limit to a less ambiguous level, as it is clear that people are confused about the relationship between units, drinks and the legal limit Drivers can still be over the limit the following morning if they have been drinking heavily the previous evening and/or late at night. While the study found that only a few people admitted to driving the morning after drinking, there was confusion about how quickly alcohol left the body. This helps highlight the issue of the complex interaction between alcohol consumption (units) and blood alcohol concentration levels natcen2010survey-mainreport.pdf/mainreport.pdf