Scottish Government Consultation: Reducing the Drink Driving Limit in Scotland The Law Society of Scotland s response November 2012

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1 Consultation Response Scottish Government Consultation: Reducing the Drink Driving Limit in Scotland The Law Society of Scotland s response November 2012 The Law Society of Scotland 2012

2 Introduction The Law Society of Scotland aims to lead and support a successful and respected Scottish legal profession. Not only do we act in the interests of our solicitor members but we also have a clear responsibility to work in the public interest. That is why we actively engage and seek to assist in the legislative and public policy decision making processes. This response has been prepared on behalf of the Society by members of our Criminal Law Committee ( the committee ). The committee welcomes the opportunity to comment on the Scottish Government s Consultation: Reducing the Drink Driving Limit in Scotland. General Comments The committee is fully supportive of the policy intent of the proposals as set out within the consultation document and welcomes the objective which these proposals seek to achieve, namely to discourage motorists from consuming any alcohol if they intend to drive a motor vehicle The committee shares the Scottish Government s, and the general public s, disapproval and concern for those individuals who choose to drive after consuming alcohol, and who put themselves, and others, at risk of serious or fatal injury. It is noted that the United Kingdom currently has the highest joint, alongside Malta, drink driving limit in Europe. Although the committee is supportive of the policy intent, there are a number of points to be further considered and discussed regarding the proposals themselves. Reduction of the alcohol limit from 80 milligrammes (mg) of alcohol in 100 millilitres (ml) of blood to 50 milligrammes (mg) of alcohol in 100 millilitres (ml) of blood. In the professional experience of the committee, a majority of convictions relate to those individuals who are substantially over the current limit of 80mg/100ml, perhaps well aware they were indeed over the limit, and the minority slightly in excess of the limit. The committee suggests that further consideration needs to be given as to whether or not The Law Society of Scotland 2012 Page 1

That is why we actively engage and seek to assist in the legislative and public policy decision making processes.

3 reducing the drink driving limit to 50mg/100ml will discourage those drivers who are substantially over this prescribed limit. The committee notes that the statistics from Transport Scotland show there were 400 cases where the driver was either over the limit or refused to take the breath test. However, the data does not show to what degree those with a positive reading were over the current limit. Such data would demonstrate whether drivers were miscalculating the limit and the effect the alcohol consumed would have on their body or if they were simply ignoring the limit altogether. In addition, the committee notes that no statistic is given as to how many drivers have been found to be between range of 50mg and 80mg /100ml Without greater detailed statistics, it is very difficult to calculate with any degree of certainty the impact and increased benefit of reducing the limit, although it is agreed and recognised there would be at least some benefit. Cross Border Considerations. A number of issues arise from the proposals to reduce the limit in Scotland to 50mg/100ml while the limit in England and Wales is to, currently, remain at 80mg/100ml. These are not necessarily problematic, but should nevertheless be considered. The reduction of the drink driving limit will bring about the situation of creating an offence in Scotland, which, because of the higher drink driving limit, is not an offence in England. The border between Scotland and England, although clearly defined geographically, is not always apparent to motorists, particularly on rural routes. A possible result of this is that a motorist may not be aware that he / she have crossed the border, and therefore unaware that he/she is, or has, committed a criminal offence. Often motorists are asked to declare motoring convictions, for example for motor insurance, driving related job applications, taxi licence applications etc. An offence committed in Scotland may not be an offence in England and Wales because of the higher limit. This raises two main points of question. How will, for example, insurance companies and prospective employers, approach drink driving convictions, and, more specifically to a taxi licence application, how will local authority civic government licensing departments The Law Society of Scotland 2012 Page 2

However, the data does not show to what degree those with a positive reading were over the current limit.

4 approach these and any objections they may receive from Chief Constables whose objections are based on a drink driving conviction in Scotland? Consideration will also have to be given to amending the driving test requirements and the provisions of the Highway Code to reflect the different prescribed limits. During the parliamentary passage of the Scotland Act 2012, earlier this year, in particular section 20 thereof (Power to Prescribe Drink Driving Limits) the Society submitted suggested amendments to section 38 of the Road Traffic Act 1988, which relates to the Highway Code and which would have ensured the Code was amended accordingly. In addition, Section 89 of the Road Transport Act 1988 (Tests of Competence to Drive) would also have to be amended to ensure that the standard driving test reflects the correct prescribed limit for that jurisdiction. Where a motorist is prosecuted and subsequently disqualified from driving under section 5(1)(a) Road Traffic Act 1988 or retains their licence for an offence under section 5(1)(b), then their licence will be endorsed pursuant to section 44 Road Traffic Offenders Act The endorsement may remain on their licence for up to 11 years. Consideration will have to be given to ensure that the DR code of the endorsement reflects that the offence was committed in Scotland to distinguish this from an offence in England and Wales, where the prescribed limit is higher. The Law Society of Scotland 2012 Page 3

During the parliamentary passage of the Scotland Act 2012, earlier this year, in particular section 20 thereof (Power to Prescribe Drink Driving Limits) the Society submitted suggested amendments to

5 For further information and alternative formats please contact: Brian Simpson Tel: The Law Society of Scotland 26 Drumsheugh Gardens Edinburgh EH3 7YR The Law Society of Scotland 2012 Page 4

org.uk The Law Society of Scotland 26 Drumsheugh Gardens

REDUCING THE DRINK DRIVE LIMIT IN SCOTLAND CONSULTATION QUESTIONNAIRE

REDUCING THE DRINK DRIVE LIMIT IN SCOTLAND CONSULTATION QUESTIONNAIRE 1. Do you agree that the drink drive limits should be reduced in Scotland? Yes. Lowering the prescribed alcohol limit for driving should