Reducing the Drink Driving Limit in Scotland - A Scottish Government Consultation September 2012
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Reducing the Drink Driving Limit in Scotland A Scottish Government Consultation September 2012
Reducing the Drink Driving Limit in Scotland
A Scottish Government Consultation
September 2012
The Scottish Government, Edinburgh 2012© 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 http://www.nationalarchives.gov.uk/doc/open-government-licence/ or e-mail: psi@nationalarchives.gsi.gov.uk. 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 www.scotland.gov.uk. ISBN: 978-1-78256-049-4 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
Contents
Ministerial foreword
Chapter 1 Introduction and overview of effect of drink driving
Chapter 2 Drink driving legislation and procedures
Chapter 3 Consultation questions
Chapter 4 Other matters and next steps
Chapter 5 Further background information
Consultation questionnaire
Appendix A Scottish Government consultation process
Appendix B Responding to this consultation paper
Appendix C List of consultees
Appendix D Respondent information form
34
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 Keith Brown MSP
Cabinet Secretary for Justice Minister for Housing and Transport
56
CHAPTER 1
Introduction
1.01 The consequences of drink driving can be tragic.
1.02 Transport Scotland’s Reported Road Casualties Scotland 20101
estimate that just over one in nine deaths each year on Scotland’s roads is
the result of drink driving.
1.03 In 2009 there were 30 fatalities and 920 casualties estimated to be due
to drink driving. For the period 2005-2009, 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.
1.04 These figures demonstrate that Scotland has a continuing problem with
drink driving and it is a problem the Scottish Government is determined to
address.
1.05 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.
1.07 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).
1.08 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.
1.09 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.
1
http://www.transportscotland.gov.uk/strategy-and-research/publications-and-
consultations/j199237-00.htm
7ESTIMATED 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
1994-98
50 210 520 770 50 290 830 1,170
average
1999 50 190 520 750 60 250 800 1,110
2000 40 190 550 780 40 240 860 1,150
2001 60 180 560 800 70 250 870 1,190
2002 40 160 620 820 50 240 970 1,270
2003 40 180 530 750 50 230 850 1,130
2004 30 140 540 710 40 170 850 1,060
2005 30 130 500 660 30 170 790 990
2006 30 130 550 720 30 160 780 980
2007 20 120 530 670 30 150 760 940
2008 30 140 490 660 40 170 760 960
2009 20 120 520 660 30 160 730 920
2005-2009
30 130 520 670 30 160 760 960
average
Note: individual columns may not sum to totals due to rounding
81.10 The UK Government’s Department for Transport produce annual
estimates2 for the cost of injury road accidents in Great Britain. These
estimates can be applied to accidents in Scotland.
1.11 The Reported Road Casualties Report 2010 provides overall cost
estimates for injury accidents in Scotland. Applying these cost figures over a
four year period (2005-2009) 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)
Accident Severity Average
Average
for all Damage
Category of road for all
injury only
accidents
Fatal Serious Slight accidents
Non built-up roads 1,927,326 219,964 22,095 132,251 2,617 17,348
Built-up roads 1,706,364 193,176 18,998 59,192 1,769 4,840
Motorways 1,604,005 212,566 26,753 66,146 2,517 9,916
Trunk roads only 2,006,133 224,019 22,872 122,490 2,362 14,152
All roads 1,855,013 205,303 20,306 84,693 1,949 7,505
2
http://www.transportscotland.gov.uk/strategy-and-research/publications-and-
consultations/j199237-20.htm
91.12 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.
1.13 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 2006-07 2007-08 2008-09 2009-10 2010-11 2011-12
Driving motor vehicle 761 651 547 488 502 584
while unfit through drink
or drugs3
In charge of motor 111 107 88 78 59 63
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 754 640 566 471 484 433
vehicle while blood
alcohol content above
limit
Failure to provide 1,041 931 779 643 633 577
breath specimen at
roadside
Failure to provide 1,385 1,191 1,046 984 906 899
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’.
10CHAPTER 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 19884 (“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’.
2.03 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.
2.04 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’).
2.05 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.
2.06 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
4
http://www.legislation.gov.uk/ukpga/1988/52/section/5
11drink driving. Any change made to one of the limits must also therefore be
reflected in equivalent changes being made to the other limits.
2.07 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.
2.08 The subject matter of the 1988 Act is generally reserved by the
Scotland Act 1998. This means the power to prescribe differential drink-
driving 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.
2.09 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.
2.10 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’.
2.12 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
5
http://www.legislation.gov.uk/uksi/2012/1710/contents/made
12current 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.
2.13 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.
2.15 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 1988
2.16 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.
2.17 Under section 6 of the 1988 Act7, 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:
6
http://www.legislation.gov.uk/ukpga/1988/52/section/163
7
http://www.legislation.gov.uk/ukpga/1988/52/section/6
13is 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.
2.18 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.
2.19 A person commits an offence if, without reasonable excuse, they fail to
co-operate with a preliminary test (section 6 of the 1988 Act).
2.20 One of the preliminary tests permitted is a preliminary breath test,
which is provided for in section 6A of the 1988 Act8. 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.
2.21 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.
2.22 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.
2.23 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.
2.24 Section 6D of the 1988 Act9 provides the police with an explicit power
of arrest where, following the completion of the preliminary breath test, they
8
http://www.legislation.gov.uk/ukpga/1988/52/section/6A
9
http://www.legislation.gov.uk/ukpga/1988/52/section/6D
14reasonably suspect that the proportion of alcohol in a person’s breath or blood
exceeds the prescribed limit.
2.25 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.
2.26 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.
2.27 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.
2.28 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.
2.30 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
15relation to accidents where an injury has occurred, but can be used as an
indicator of trends.
2.31 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.
2.32 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 0300.
2.33 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 0300.
2.34 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 day12.
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.
10
http://www.transportscotland.gov.uk/strategy-and-research/publications-and-
consultations/j199237-34.htm
11
http://www.transportscotland.gov.uk/strategy-and-research/publications-and-
consultations/j199237-35.htm
12
http://www.transportscotland.gov.uk/strategy-and-research/publications-and-
consultations/j199237-36.htm
162.36 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.
2.38 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 1999.
2.39 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.
2.40 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.
2.41 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.
1718
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’).
3.02 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.
3.03 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.
3.04 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.
3.05 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.
3.06 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.
3.07 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.
193.08 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 2010. The North
Report13 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.
3.09 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 drive-
related. Based on the Albalate study of European countries, although
without a defined time horizon, 77 – 168 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
2008”
3.10 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.
3.11 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 201014 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.
13
http://webarchive.nationalarchives.gov.uk/20100921035225/http://northreview.independent.go
v.uk/docs/NorthReview-Report.pdf
14
http://www.publications.parliament.uk/pa/cm201011/cmselect/cmtran/460/460we12.htm
203.12 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.
3.13 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.
3.14 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.
3.15 Lowering the legal drink drive limit would send a clear message that
people should not drink and drive.
3.16 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.
21QUESTION 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?
22Partnership 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 202015and a number of
partners have been involved in tackling the issue.
3.19 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.
3.20 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.
3.21 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.
3.22 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.
3.23 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.
3.24 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.
15
http://www.scotland.gov.uk/Resource/Doc/274552/0082161.pdf
233.25 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.
3.26 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?
24CHAPTER 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).
4.03 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.
2526
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).16
5.02 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.
5.03 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.
5.04 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), 2008. “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 809 028, U.S. Department of Transportation, National Highway Traffic Safety Administration,
Washington, DC.
27Collision 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).18
5.06 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.
5.07 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.
5.09 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.23
5.10 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 21-24 has a 1.79 times greater crash risk than a driver aged 35-
18
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, 125-133.
21
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, 387–395.
23
Keall, M., Frith, W. & Patterson, T. (2004) The influence of alcohol, age and number of passengers on the night-
time rate of driver fatal injury in New Zealand. In: crash Analysis & Prevention, Vol. 36 p. 169-178.
2849. This rises to a 2.48 times greater risk at 40 – 50mg/100ml (Preusser
2002).24
5.11 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 18-25 year old driver with a BAC at or above 50mg/100ml is
significantly increased.25
5.12 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.26
5.13 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 recommendation27.
24
Preusser, D.F. (2002) BAC and fatal crash rate. In: ICADTS 2002 Symposium Report 'The Issue of Low BAC',
p937.
25
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, http://erso.swov.nl/knowledge/content/06_young/novice_drivers.htm
27
European Transport Safety Council, http://www.etsc.eu/home.php
29DRINK 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 20
Public attitudes to drink driving
5.15 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.
5.16 The UK Government Department for Transport’s British Social
Attitudes Survey 2011 report29 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.
28
http://www.scotland.gov.uk/Resource/0039/00396342.pdf
29
http://assets.dft.gov.uk/statistics/releases/2011-british-social-attitudes-survey-attitudes-
to-transport/bsa-2011-report.pdf
305.17 The UK Government Department for Transport’s Road Safety
Research Report No. 122 Attitudes to Road Safety: Analysis of Driver
Behaviour30 revealed that 74% of those who responded to the study agreed
that drivers should not drink any alcohol before driving.
5.18 The July 2012 poll31 conducted by the Institute of Advanced Motorists
revealed that 66% of respondents wanted to see the drink drive limit reduced.
5.19 The Scottish Government published a report in March 2008 32 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.
5.20 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”.
5.21 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.
30
http://assets.dft.gov.uk/publications/pgr-roadsafety-research-rsrr-theme5-
natcen2010survey-mainreport.pdf/mainreport.pdf
31
http://www.iam.org.uk/news/latest-news/1101-get-tough-on-drink-driving-say-motorists
32
http://www.scotland.gov.uk/Resource/Doc/214425/0057242.pdf
3132
CONSULTATION QUESTIONNAIRE
Question
1. Do you agree that the drink drive limits should be reduced in Scotland?
Yes No
If yes, please go to Q1A.
If no, please go to Q2.
Question
1A. The Scottish Government is proposing:
A reduction in the blood limit from 80mg of alcohol in every 100 ml of
blood to 50 mg of alcohol in every 100 ml of blood;
An (equivalent) reduction in the breath limit from 35 mcg of alcohol in
100 ml of breath to 22 mcg of alcohol in every 100 ml of breath; and
An (equivalent) reduction in the urine limit from 107 mg of alcohol in
100 ml of urine to 67 mg of alcohol in every 100 ml of urine.
Do you agree with the SG proposal to reduce the drink driving limits?
Yes No
(Optional question)
2. Do you have any evidence for what would be the main consequences
of the SG proposals?
(Optional question)
3. Do you have any evidence for what would be the financial impact of the
SG proposals?
Comments:
33Question
4. Do you have any comments to make on the ancillary matters related to
the SG’s proposal to reduce the drink drive limits?
Comments:
Question
5. Are there any other measures that should be considered in order to
tackle drink driving?
Comments:
34Please email this response by 29 November 2012 to:
Drink.drivelimit@scotland.gsi.gov.uk
Or you can post it to:
Jim Wilson
Room 2W
Law Reform Divison
Justice Directorate
Scottish Government
St Andrew’s House
Regent Road
Edinburgh
EH1 3DG
3536
APPENDIX A: SCOTTISH GOVERNMENT CONSULTATIONS
Scottish Government consultation exercises aim to provide opportunities for
all those who wish to express their opinions on a proposed area of work to do
so in ways which will inform and enhance that work.
The Scottish Government encourages consultation that is thorough, effective
and appropriate to the issue under consideration and the nature of the target
audience. Consultation exercises take account of a wide range of factors and
no two exercises are likely to be the same.
Typically, Scottish Government consultations involve a consultation paper
inviting answers to specific questions or more general views about the
material presented. Consultation papers are distributed to organisations and
individuals with an interest in the issue, electronically or in hard copy and are
placed on the Scottish Government's consultations webpage to allow for
participation from a wider audience.
Consultation exercises may also involve seeking views in a number of
different ways, such as through public meetings, focus groups or
questionnaire exercises. Copies of all the written responses received to a
consultation exercise (except those where the individual or organisation
requested confidentiality or the response may be considered defamatory) are
placed in the Scottish Government library at Saughton House, Edinburgh (K
Spur, Saughton House, Broomhouse Drive, Edinburgh, EH11 3XD, telephone
0131 244 4556).
All Scottish Government consultation papers and related publications (e.g.
analysis of response reports) can be accessed at:
http://www.scotland.gov.uk/consultations.
The views and suggestions detailed in consultation responses are analysed
and used as part of the decision making process, along with a range of other
available information and evidence.
Depending on the nature of the consultation exercise the responses received
may:
indicate the need for policy development or review;
inform the development of a particular policy;
help decisions to be made between alternative policy proposals; or
be used to finalise legislation before it is implemented.
Final decisions on the issues under consideration will also take account of a
range of other factors, including other available information and research
evidence.
37While details of particular circumstances described in a response to a
consultation exercise may usefully inform the policy process, consultation
exercises cannot address individual concerns.
38APPENDIX B: RESPONDING TO THIS CONSULTATION PAPER
Please send your response with the completed Respondent Information
Form at Annex D to:
Drink.drivelimit@scotland.gsi.gov.uk
Postal address:
Jim Wilson
Room 2W
Justice Directorate
Scottish Government
St Andrew’s House
Regent Road
Edinburgh
EH1 3DG
The deadline for responding is 29 November 2012
This consultation, and all other Scottish Government consultation exercises,
can be viewed online on the consultation web pages of the Scottish
Government website at http://www.scotland.gov.uk/consultations.
The Scottish Government now has an email alert system for consultations
(SEconsult: http://www.scotland.gov.uk/consultations/seconsult.aspx). This
system allows individuals and organisations to register and receive a weekly
email containing details of all new consultations (including web links).
Handling your response
We need to know how you wish your response to be handled and, in
particular, whether you are happy for your response to be made public.
Please complete and return the Respondent Information Form at Annex D.
This will ensure that we treat your response appropriately. If you ask for your
response not to be published we will regard it as confidential, and we will treat
it accordingly. Please note we will not accept any anonymous responses
to this consultation.
The Scottish Government are subject to the provisions of the Freedom of
Information (Scotland) Act 2002 and would therefore have to consider any
request made to it under the Act for information relating to responses made
to this consultation exercise.
Next steps
Where respondents have given permission for their response to be made
public and after we have checked that they contain no potentially defamatory
material, responses will be made available to the public in the Scottish
Government Library (see the attached Respondent Information Form), these
39will be made available to the public. You can make arrangements to view
responses by contacting the SG Library on 0131 244 4552. Responses can
be copied and sent to you, but a charge may be made for this service.
After the closing date, all responses will be analysed and considered along
with any other available evidence. The analysis of responses will be
published. Subject to comments from consultees, and the availability of
Parliamentary time, the Scottish Government would propose to introduce
secondary legislation in the Scottish Parliament.
Queries, comments and complaints
If you have any queries, comments or complaints about how this consultation
exercise has been conducted, please contact Jim Wilson by:
Email: Jim.Wilson2@scotland.gsi.gov.uk
Phone: 0131 244 7050
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