Given the fact that the Coronavirus pandemic has seen a rise in the number of people with alcohol and mental health issues, BCL Associate Daniel Jackson considers the recent report of the Parliamentary Advisory Council for Transport Safety (‘PACTS’), which recommends for motorists to face mandatory roadside breath tests.
Although the Coronavirus pandemic in 2020 saw the amount of drink and drug driving offences decrease, some areas in the UK recorded more than the previous year, which caused concern in light of the lower traffic volumes resulting from the government-imposed restrictions.
In the lead up to the festive period in 2020, police forces were again taking the opportunity to remind people to not drink and drive, with the prospect of some drivers possibly being tempted to drive home after having a drink, given the Coronavirus rules in place.
Reflecting on driving offences, it is sports professionals that continue to attract press attention. In December 2020, England and Aston Villa footballer Jack Grealish was sentenced for two driving offences, one of which occurred during the first lockdown in March 2020. Whilst in the same month, ex-Charlton Athletic Women’s footballer Madelene Wright left the club, following an investigation into her behaviour, with one particular video shared on social media apparently showing her drinking from a champagne bottle whilst behind the wheel.
As the country looks to emerge from the Coronavirus pandemic in 2021, the PACTS report titled ‘Drink driving – taking stock, moving forward’ addresses a number of issues, including police enforcement, which is worthy of discussion, principally the proposition of mandatory breath testing.
Current police powers
In accordance with section 6 of Road Traffic Act 1988, the police can stop a motor vehicle at any time and ask the driver to take a preliminary breath test if the police:
- reasonably suspect that the driver has consumed alcohol
- reasonably suspect that the driver has committed a road traffic offence while the vehicle was in motion
- reasonably believe that the driver has been involved in a road traffic accident
Whilst the above allow the police to test for alcohol consumption by drivers in the majority of cases, they do not make it possible to effectively convey the message that whenever an individual drives a motor vehicle they may be subject to a breath test, even if that person is driving carefully to evade the attention of the police.
If a driver refuses to take a breath test or fails to supply a sample of breath, and does not have a ‘reasonable excuse’, then they can be arrested and taken to a police station where an ‘evidential’ breath test will be conducted. A different procedure may take place, for example, if a driver has been injured in a road traffic collision.
In England, Wales and Northern Ireland, the alcohol limit for drivers is:
- 35 microgrammes in 100 millilitres of breath
- 80 milligrammes in 100 millilitres of blood
- 107 milligrammes in 100 millilitres of urine
Previously in the UK, mass testing has been conducted with the use of roadside checkpoints, where the police had the power to pull over any driver, but could not legally require a driver to provide a preliminary breath test, unless they reasonably suspected that the driver had consumed alcohol. This may come as news to some readers, who would be forgiven for assuming that the police possessed the power to request a breath test, in the absence of reasonable suspicion that the driver was under the influence of alcohol. Due to the amount of resources required, such testing is now rarely implemented by the police; significant cuts to roads policing has meant that fewer breath tests are carried out.
According to the PACTS report, there is ‘clear evidence that an individual’s perception of the likelihood of being caught by the police influences their decision to drink drive’. It might sound obvious, but not being stopped by the police and breathalysed can result in the normalisation of such behaviour, which encourages those individuals to decide to do it (drink drive) again.
The report concludes that the system to thwart drink driving is no longer adequate. It suggests that one area of action to potentially reduce such offending is to increase the level of enforcement. However, the report makes clear that change to enforcement alone is not sufficient.
Mandatory breath testing
The police possess the power to stop a vehicle, including randomly, in accordance with section 163 of Road Traffic Act 1988. However, the law presently necessitates one of the conditions in section 6(2)-(5) to be satisfied before a preliminary breath test can be requested.
A potential new enforcement method cited in the PACTS report is mandatory or ‘random’ breath testing, which would give the police the power to conduct a preliminary roadside breath test on any driver. This would constitute testing focused on times and locations where there is a strong likelihood of drink driving, such as near to a public house on a Friday or Saturday night, often based on intelligence.
Increased enforcement by the police through the introduction of mandatory breath testing in England and Wales raises concerns because of a lack of resources, which may result in the police not being able to conduct a large volume of tests. The process of the police setting up checkpoints and testing a high number of individuals (who drive by) is quite clearly resource intensive.
It is worth noting that this method of testing has been legal in Northern Ireland since 2016. In Australia, breath tests are not conducted by police officers, but rather police cadets, which leaves police officers to evidentially test drivers and then process those individuals who are found to be over the alcohol limit.
According to PACTS, new policy initiatives are necessary, with proposed changes being considered by the Department for Transport.
In order to introduce mandatory breath testing in England and Wales, section 6 of Road Traffic Act 1988 would need to be amended to give an overall power to the police to require anyone who is driving a motor vehicle to cooperate with a preliminary breath test.
PACTS believes that high levels of enforcement are one of the most significant single tools that can be used to decrease the levels of drink driving, as it creates greater public perception of enforcement. Evidential testing at the roadside remains under development, although such portable evidential breath testing equipment is not yet type approved by the Home Office.
A well-publicised change in legislation, followed by low numbers of mandatory breath testing at checkpoints that are targeted and part of a campaign, would go some way to reduce drink driving in England and Wales. This would need to be closely monitored by chief officers and government officials in order to ensure that any increased police power is adopted fairly and appropriately.