Last reviewed 1 April 2016
After Scotland reduced the drink drive limit just over a year ago, Northern Ireland announced in January 2016 that it is well on course for not only following its Scottish neighbours but introducing its own two-tier system affecting professional drivers by having an even lower limit for them from 2018. However, in February 2016, the Transport Minister, Andrew Jones announced that there are no plans to lower the drink drive limit in England and Wales to bring it in line with its neighbours. Vikki Woodfine, a Partner at DWF LLP, looks at the current regime in place across the UK in terms of drink drive limits and analyses the planned changes and what this might mean for professional drivers and their employers.
Scotland was the first UK country to reform its drink driving laws. From 5 December 2014, the drink drive limit in Scotland was reduced by over a third, from 80mg/100ml of blood (35µg/100ml in breath) to 50mg/100ml (22µg /100ml in breath). This brought Scotland in line with many other European countries, including Ireland and France.
Since being in force, there have been cases in Scotland where individuals have claimed that their breathalyser test results have been negatively affected by mouthwash, medication and even chocolate liquors which were consumed shortly before being stopped for a breathalyser test.
Police Scotland figures have shown that the overall drink driving offences are almost no different from before the limit was lowered. On the one hand, this could indicate that the reduction in the drink drive levels has made no difference at all. Conversely, it could be argued that following the reduction of the overall limit an offending spike might have followed, but given that it has not, people have adapted their behaviour accordingly.
In Northern Ireland, as with England and Wales, a person is guilty of an offence if he or she has 80mg of alcohol or more in 100ml of blood. However, the new Road Traffic (Amendment) Bill (the Bill) will bring Northern Ireland in line with Scotland and the rest of Europe by reducing the overall drink drive limit.
In fact, Northern Ireland has also gone one step further and will introduce a two-tier system for inexperienced and professional drivers.
Under the new legislation, a person is guilty of an offence if:
he or she is a regular driver (ie not a learner, has been driving for over 2 years and do not drive professionally) and have at least 50mg of alcohol in 100ml of blood (22µg of alcohol in 100ml of breath)
if the driver is a learner, novice (has held a driving licence for less than two years), holder of a licence of a vehicle in a specified category (such as an HGV or public service vehicle (PSV)) or holds a taxi driver’s licence, then he or she will be guilty of an offence if there is at least 20mg of alcohol in 100ml of blood (9µg of alcohol in 100ml breath).
The new legislation will also introduce a graduated penalty scheme which means that:
if it is a less serious first offence, then there will be a fixed penalty
if the sentence is more serious, or this is the second time an individual has been convicted of a drink driving offence, then the judge or magistrate will have discretion to increase the penalty imposed.
Penalty points to an individual’s licence will correspond to the amount of alcohol involved in the offence. An individual can reduce his or her penalty if he or she attends a drink driving course as approved by the Department for the Environment, within six months of receiving a penalty.
As part of the new measures, the police will also have the power to set up special drink drive check points to try and catch offenders.
The Bill has been passed by the Northern Irish Assembly and is set to be introduced in 2018, although a specific date has not been confirmed yet.
The Northern Ireland effect
This change will have a substantial impact on professional drivers, as the limit for being convicted of drink driving will be reduced to 25% of the current limit. However, there appears to be some acceptance that the lowering threshold needs to take effect gradually, hence, the ability to receive fixed penalties and reduce overall penalties by attending educational courses and the like.
It is important that drivers and operators sending their drivers into Northern Ireland from 2018 are aware of these changes, and training notes and guidance issued accordingly in the run up to the implementation of the Bill.
The Bill does at least qualify that the lower prescribed limit is for drivers with a specified licence (including HGV) only when driving or attempting to drive such a vehicle. Therefore, the reduced limit that is in line with that already in place in Scotland would apply to any driver if they were driving their personal car, whether they are a professional driver or not.
To some extent, introducing these harsher limits is in line with an overall push in the industry to improve the public’s perception of HGV drivers and professionalism generally. Also a stricter criminal regime is not unusual for professional drivers, for example, HGV drivers already face harsher penalties for mobile phone use and generally in road traffic offences, the use of a HGV is an aggravating feature which attracts higher penalties. Also, for HGV drivers the overall fines available to a court for certain traffic offences are already set at double the level as those for “ordinary” car use.
England and Wales
Despite pressure from road safety campaigners, the Department for Transport (DfT) has confirmed it is not undertaking a review to move the legal blood alcohol level down from its present 80mg to 50mg of alcohol per 100ml of blood. This leaves England and Wales with minimum levels higher than most other European countries.
Research shows that with a blood alcohol level between 50mg and 80mg, a driver has a six times greater risk of a road death than a driver who has not consumed alcohol. Research also shows, however, that even at the new lower limit (as in place in Scotland), a driver is still three times more likely to die in a crash than with no alcohol.
In rejecting the proposition in 2011 for a lower limit in England and Wales, the Secretary of Transport, Peter Hammond stated that “a significant number of those convicted of Drink Driving are significantly over the limit, with 40% being 2.5 times the limit”. This behaviour, he said, shows a blatant disregard for the law and safety of others. He considered that better enforcement of the existing limit was likely to have the most impact on those “dangerous” drivers and would be the most effective use of resources. It appears that this stance has not changed given Andrew Jones and the DfT’s recent announcement.
The disparity around the UK will mean that it is possible to be driving legally in one country but then committing an offence simply by passing over the border into another. This is particularly of concern given that a conviction in Scotland or in Northern Ireland would result in a mandatory disqualification throughout the UK.
The question is often posed: how much is too much? Everyone processes alcohol differently, both in terms of the rate at which it is absorbed and eliminated by the body. The strength of the drink is also important. Experts anticipate these lower limits of 50mg will mean that the average man would be limited to just under a pint of beer and an average woman to half a pint of beer. On these levels of assumption, it is easy to see that from 2018, professional drivers who are going to drive through Northern Ireland in a HGV simply cannot drink alcohol at all.
There is, however, no safe way of judging whether you will be over the limit based on consumption alone, whatever the legal limit being applied. The safest advice if you are driving is to consume no alcohol at all. If you have been drinking, then make sure you allow plenty of time for the alcohol to leave your system before getting behind the wheel of a vehicle.
Steps to take
Many operators will have a drugs and alcohol policy within their driver handbook. Operators are advised to review any such policy and ensure that all of the relevant details on the various alcohol limits across Europe are noted. A careful eye should be kept on the developing situation in advance of 2018, to allow for policies and guidance to drivers to be updated and circulated.
It would be hoped that any commercial vehicle operator tells its driving staff not to drink at all at work. If this is not the case, to best protect themselves from any criminal repercussions, operators must ensure that staff understand that any such breach may be treated as gross misconduct. This should then assist the operator to “exit” any employee convicted of drink-driving, as clearly they would then be of limited use to the operator if employed as a driver.