Note: I have removed the officer’s name, but this e-mail is reproduced here on the LA Blog exactly as received. I think he is inaccurate in several of his factual claims, especially since I know people who have been subject to random breath testing around the Christmas period. I have also encountered any number of police officers who struck me as either mad or high on drugs. However, since he has taken the trouble to write at such length, and so politely, I do require that those who wish to respond should do so in a calm and factual manner. The officer will, I am sure, be following your comments. It would be useful if he were to go away with a better idea than he appears to have of the objections that we have to police powers and to the frequent use and misuse of these powers. SIG
Dear Dr Gabb,
I write in relation to your contribution towards drink-drive laws and enforcement on Radio 4 on the late afternoon of 22nd January 2013. I am a serving front line police officer who deals with evidential specimens of breath on a regular basis, on average 3-5 times per week. I am deeply concerned that some of your claims were, at best ill-informed and at worst just plain wrong. I listened to your point of view, and having heard it feel that I must write in and speak up for what is technically correct. I note that some of the arguments you raised are documented on your website “Libertarian Alliance”, where this is the case I will use quoted text from there. I have also tried to cite reputable sources to back up my point of view, unlike your website which appears to point to no sources of information to back up your claims. It also appears that you have little or no practical knowledge of the Road Traffic Act and police powers associated with it.
Central to your agreement was this mistaken belief, or perhaps obsession, that “the great majority of those punished in England for drinking and driving were not noticeably driving erratically. They tested positive in random stops by the police…” Where is the data to back this claim of “the majority”? This brings me on to the next point, to clarify once and for all there no such thing in law as a “random stop by the police” expressly for the purpose of demanding a specimen of breath. These so-called Road Blocks you refer to in your comments on Radio do not exist. The police do not have a power to stop a vehicle solely to demand a specimen of breath from the driver (1), your suggestion that they do is damaging towards public confidence and plain wrong. I am not suggesting it never happens, the police are of course not perfect, but if it were to happen it would be unlawful, in nine years as a police officer I have never once conducted a breath test procedure at roadside checkpoint.
Of course police officers (in uniform) do have powers under section 163 Road Traffic Act (2) to stop a vehicle, this might sit uncomfortably with yourself and your “Libertarian” colleagues but this is the law and as it stands, police don’t need a reason, s163 is the reason. However, once stopped the constable may exercise powers under s164 and 165 respectively (3) (driving documents and insurance), none of these mention your so-called power to stop for a breath test. Once stopped, the police can require a specimen of breath for one of the following reasons (4), Consumption/Influence of alcohol by the driver is suspected (objective evidence, not randomness), Driver committed a moving traffic offence, or driver involved in road traffic collision. Again these are perfectly reasonable and objective reasons for requiring a breath test at the roadside. If someone were to smash into the side of your car whilst you were driving along minding your own business I’m sure you would have no issue with the police asking the driver of such vehicle to provide a specimen of breath for analysis at the roadside.
You then mention, that “most people who are stopped and who test positive are not to any reasonable observer driving erratically…” This statement is simply incredulous and irresponsible, you completely miss the point about impairment and the effect of judgement and risk on drivers who consume alcohol and drive. I dare say that after 20 years driving experience, I could drive a car to an “acceptable” standard whilst over the limit, but what I could not do is judge speed, react quickly to road hazards such as traffic lights etc, judge bends in the road and negotiate busy junctions. Can you honestly tell me, hand on heart that you would let your wife/son/daughter drive home whilst drunk solely on the basis that they “seem to be driving ok to me”? I suspect not. Since you like drawing comparisons, would you for example be happy with your dentist drilling a hole in your tooth and filling it after consuming 8 pints of lager? No doubt he or she would get the job done but it would be messy and probably painful, it would be a much safer and more pleasant experience for the dentist to work whilst not influenced by alcohol.
Moving on to your next claim that “the present drink driving limits are very low…” Really? On what basis do you make that assumption? Where is the link to the empirical data? As far as I am aware, our legal drink drive limits are broadly similar to those of Europe and the rest of the developed world.
Since you clearly know very little about drink drive legislation, allow me to explain some facts about the process should one find oneself arrested for being “over the limit”. I can’t cite any references here, this is simply what I do – you’ll just have to take my word for it.
The current legal drink drive limit in the United Kingdom is 35 micrograms alcohol per 100 millilitres of breath. Once taken to a police station, the “accused” if you like, is asked to provide two specimens of breath on a device of a type approved by the secretary of state, sounds rather big-brother I know but don’t panic, it’s just a calibrated machine. Now, of the two readings the LOWER of the two will be introduced as evidence and the other will be disregarded. This method works in the favour of the accused, ie, if you provide readings of 34 and 42 micrograms respectively, the police would take your reading as 34 and hey-presto, you walk free.
But wait, it gets better, national guidelines state that police only prosecute on readings over 39 micrograms of alcohol per 100 millilitres of breath, yet another chance for victory over your so-called “very low” limits. So if the accused blows 39 and 45 respectively (the upper reading being some 30% HIGHER than the drink drive limit), again they walk free. Small numbers I know, but nevertheless the machines are calibrated down to around 9 micrograms so it’s all very accurate.
So now you can see that pretty much all of the process so far is stacked IN FAVOUR of the accused. But there’s more… If the accused provides a lower reading of between 40 and 50 micrograms of alcohol then they have the right to opt for what is known as the “Statutory Option”. This means that if they so wish, they can substitute their breath measurement for one of blood or urine, it will be for the police to decide, the preferred option is for blood. However, the police can’t go sticking needles into people so we have to call upon the services of a Healthcare Professional (a doctor). Since Police stations don’t usually have resident doctors, there is inevitable a delay in obtaining the sample, sometimes two or three hours, and of course in that time, the accused’s body continues to metabolise the alcohol, thus reducing the chance of being over the limit. The police can instead require a sample of urine and often do, but in the case of urine, the accused provides 2 samples, the first is discarded and the other is used, but must be provided within an hour. You can imagine that most people provided it some 59 minutes after the first passing in order to give their body maximum chance to metabolise the alcohol. Indeed in several of these “Statutory Option” cases, the samples come back from the laboratory under the drink drive limit. And the icing on the cake…once the accused as provided their blood/urine sample, the police cannot go back and adduce the evidence from either breath sample. So if the constable spills the urine over the custody Sgts desk or drops the blood vial, or either get lost in the post, the accused walks free.
So please be assured that those who appear before the courts charged with drink driving offences are SUBSTANTIALLY over the legal limit and have had ample opportunity to escape prosecution due to procedural matters ultimately in their favour.
I note also that you suggest that the presence of drink should be an aggravating factor when sentencing for accidents, a reasonable point, but I would have thought not having the accident in the first place would have been far better, and in the case of someone who was over the limit, they would hopefully have been removed from the road before the accident occurred.
Finally, you mention twice about random breath testing being likened to searching people’s bags on trains without grounds on the basis that they might be carrying stolen items and suggest it would be an abuse of Human Rights? I agree, I’m a member of the public as well as a police officer and I would be horrified if the state was allowed to rifle through my bag without any grounds whatsoever. The point here is that they can’t, any more than they can demand specimens of breath from drivers without grounds. As a constable I could perfectly lawfully search a person’s bag on a train for stolen items IF I had reasonable objective grounds for suspecting them of being in possession of stolen property. I could also require a specimen of breath from a driver on the basis of those very specific objective facts. It’s perhaps ironic that the analogy you use is in fact based on incorrect information, which when underpinned with correct legislation fits perfectly to explain away your original argument
It’s a pity that Radio 4 couldn’t have had a more reasoned debate with a contributor who knew something of the legislation surrounding drink drive. The sad thing is that the real progress that has been made in reducing death and serious injury attributed to drink drive has been made not with legislation, but with changing public attitudes to drinking and driving which have shifted towards making it socially and morally unacceptable. Most of your comments were factually inaccurate (or just wrong) and simply serve to distort the truth about alcohol impairment and the effects on drivers, and risk damaging public confidence in the police who on the whole do the right thing. Indeed in my experience, police receive many anonymous tip-offs about people drinking and driving, often from those who may not normally wish to support them. Those people do however know that it kills and seriously injures many people unnecessarily and that they above all think it is unacceptable to do (regardless of whether they feel the driver can drive to an acceptable standard when drunk or not).