Sean Gabb on Drinking and Driving: A Police Officer Writes


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).

Yours Faithfully,

XXXXXX XXXXX

(1) http://drinkdrivingsolicitor.blogspot.co.uk/2013/01/can-police-conduct-random-breath-tests.html

(2) http://www.legislation.gov.uk/ukpga/1988/52/section/163

(3) http://www.legislation.gov.uk/ukpga/1988/52/contents

(4) http://www.legislation.gov.uk/ukpga/1988/52/section/6

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31 responses to “Sean Gabb on Drinking and Driving: A Police Officer Writes

  1. The guy seems reasonable Sean. I was stopped in a checkpoint in the UK in the last quarter of 2011. No big deal just seeing if anyone was intoxicated and no papers or anything – just friendly local cops – It is noteworthy that here in the US at least in PA, the Police can NOT just stop a vehicle without due cause. IE If you have a bulb burned out they can but if you are pickled and driving well (ie carefully) they can not stop you so it depends on your resistance to alcohol. They look at frame and BMI and in some states the consumption limits are higher for big people because they can sink 6 pints and be sober whereas a little person can’t. I think drinking and driving penalties should come under acceptable risk – ie if you drive home at 1:00 in the am on C or B roads and there is no traffic and you drive at 25 MPH does it really matter that you have drunk three bottles of Pomerol? Just asking!

    Whereas if you get smashed at lunch in Caterham and drive like a loon in Tesco’s car park then yes the book should be thrown at you. Knowing the UK they will probably press for breathalyser keys soon – so people will drive older cars an these will be a target.

    However your cop friend does seem to have a pretty reasonable gripe if you did not provide references and statistics – maybe you could?? Most drivers just over the limit know they are taking a risk – drinking and driving should be by your own risk assessment – easiest thing is to have a nominated driver – btw if you get done here in the US for DUI you’re screwed.

    I think it is morally reprehensible to ban smoking in pubs – that is probably the reason there is less DUI in the UK because no one goes to the pub any longer. (If this guy is a good cop I suggest he emigrates to the US? At least he can have a gun here.)

  2. I repeat (from the previous thread), it should be up to the owner of a road to establish the general rules by which their road is used.
    If people really do not like the rules the state says are needed for the reasonably safe use of its roads – then they should private roads.
    There is no economic reason why the state should build a vast road network – or own one.
    Private enterprise (either commercial or charitable trust) can build what roads are needed – and establish the general rules for their use.

  3. What is supposed to happen and how things actually happen are two different things.A while ago I was driving at 3 am to an all-night garage for some petrol (I was in a hired car and was about to undertake a long drive to the south for a martial arts event hence the 3am start). I was not driving “erratically” and I had 8 hours sleep in preperation for the journey. I had gone only half a mile from my home when the blue light appeared behind. I pulled over and one of them sauntered up. As soon as the window dropped and there was no smell of booze he lost interest. He asked me various noisy questions, albeit politely , to which I gave polite but mainly information-free replies, apart from asking if he had his breathaliar as I am a lifelong teetotaler.I like the way their face falls when you say that. As I said, once he realised I was not a drunk, he lost interest and was on his way with a few “mind how you go” cliches. The fact is it was a random stop for no reason other than the fact I was on the road at 3 am and he reckoned there was a good chance I had had a skinfull and it would be a nice easy result for him. I’d call that a random stop, whatever “the law” says.

  4. What this officer says is eminently sensible, but it is directly contradicted by the publicity put out by the media, for example over the Christmas period. The impression given is clearly that the Police will be conducting random roadside breath tests. This is sadly part of a modern trend towards law enforcement by threats and bullying. A while ago I witnessed what must have been the largest assemblage of police officers I had ever seen in one spot, ambushing motorists for no obvious reason. I wrote to the local Chief Constable asking him what on earth was going on. Apparently they were checking that people were wearing seatbelts and had current tax discs. The Chief Constable expressed the view that the public would feel reassured by this police presence – I told him the opposite was more likely the case. As indeed it was when I witnessed a large procession of police motorcycles and cars proceeding down (and completely blocking) the outside lane of an otherwise empty M23 / A23 London to Brighton road at just under the legal speed limit. They looked like a Presidential motorcade, but in fact were merely returning from an event in London. This was just a naked display of power and intimidation, which is sadly all too typical of today’s police force.

    I will excuse your correspondent from this charge, as he sounds like an old fashioned copper!

  5. “police don’t need a reason, s163 is the reason.”

    Marvellous.

  6. The police are a standing army. By and large, they will obey whatever regime in charge – European arrest warrants, case in point. They need to go. A standing army is the enemy of freedom.

    • Andrew Linley writes via FaceBook: “Weasel words [from the Officer]. It’s easy to invent grounds for ‘suspicion’ retrospectively, so as to claim that stops are not random, or motivated by factors such as the colour of the driver’s skin.”

  7. There are a couple of points that I will make when I have a little more time, but for now this may be of interest:

    http://www.legislation.gov.uk/ukpga/1988/52/section/163

    This lays out the power referred to. It will be noticed that there must be some reason for this power to be exercised.

  8. A month or two before Xmas there was a large police presence on a busy Southport road. They were stopping most cars going in one direction one of which was mine. I wound down the window and was astonished to be told with head well inside the window, “we’re doing a survey of where people are going, where have you come from and where are you going? ”
    If that was not a blatant drink drive trap then I’ll eat my laptop.

  9. Firstly, I don’t accept the aruments of police in defence to stops for breath testing. Up to 1994 I had never been stopped by police, however after suing them for malicious prosecution, when I was found not guilty of
    a trumped up Lybian diplomat charge, they stopped my car 33 times, 35, times if you include the most recent stops, this will legal action being taken against them, the most recent stop resulted in me being ambushed from a country lane, they claimed I was speeding and then tried to trump a charge under the new anti terror law, my numberplates were illegal, I went to the Citroen main dealer who fitted them on the car from new, and the MOT station, presented their evidence and they dropped the attempted charge, “No Case To Answer” The case was refered to IPCC who lost much of the evidence and case reference numbers. As per normal for them. I took the case to the ECHR who informed me my rights had not been violated as I have not faced charges and it appeared no article had been breached due to my own domestic remedies applied on the case file, How can you not say the police abuse these laws, regarding the old story about your light is out, they alway’s use this one, but when you get out of your car and look, they come up with this bullshit story it must be faulty bulb, having worked in transport since I was 16 and having considerable experience in mechanics, bulbs do not give problems only when the police stop you and not at any other time, there is no such fault ever recorded, and I have never come across one in all my years, this is just a fabricated excuse, to get what they describe as a “Good In” to try and mailiciously prosecute you. Cristmas this year, particularly in the Riverside area, the police set up RUC style road blocks to stop every car and breath tested the drivers, under what law one may ask, this was not a police stop but a road block, testing every driver, who entered it. These powers are subject to abuse and in the hands of many officers being used illegally to harrass people trying to obtain justice of making complaints against the conduct of officers.

  10. Secondly PC XXXXXX why is when you stop peoples cars you initiate stop
    and search, when breath tests prove negative, what right do you have to enter my car or enter my
    glove compartment, or search my boot for instance!

  11. Secondly Mr Expert XXXXXX, please explain this, how do the police justify
    stoping on the basis of driving to causciously, doing 19 MPH in a 20 MPH
    limiter restricted area, what law states you can be stopped for doing 1 MPH
    less than the limit for instance, and this argument be used for the purpose of
    the stop, where on the satate is there a law for driving with excess care.

  12. Seems rather a good cop – old fashioned and reasonable.

    I was stopped about 1am, a year or so ago, driving home after a late arriving flight. The police could not have been more civil, I hadn’t drunk anything, and I wasn’t speeding. But it certainly felt like a random stop.

  13. Yes, well they had proably put your number through the computor system
    on the car, probably didn’t flag up anything, presume you were not suing
    them at the time. That might explain something at least. Did they say
    you’ve made a formal complaint against me for instance. Doubt it by
    what you state in blog.

  14. PS, JT, those computors fitted to those police cars, can tell everyting about
    you, they hold considerable amounts of data, even if you owe a fine that
    has falsley been acredited to your name, They are in fact on board intelligence systems, that are used to target people tying to sue police.
    can’t say much for the data though, it’s about as reliable as evidence
    as Dick Dandy.

  15. Sean, you should have waited for the second part!

    Re my earlier post, the first point I would make is that we do have a de facto random breath test regime in place, and this has been so for some years.

    Around Christmas a couple of years ago I was stopped with no reason being given on my way to work early in the morning. Having answered various questions – destination, occupation etc, etc – I was then allowed to carry on.

    But I suspect that the reason for all this was to find some justification for a breath test. So in effect different laws are being connected up to create a new power of random breath testing that does not formally exist.

    I believe we see something similar with respect to the power to search an arrested person’s premises conferred by PACE 1984.

    One day a friend answered his door only to be accused of a drug offence and arrested. The officers then searched his house, only to find nothing and promptly de-arrest him as accusation was entirely groundless. Discussing it later on, we could only surmise that some hostile neighbour had decided to denounce him out of spite.

    The power of search in PACE was drawn up to facilitate further investigation once a person had been arrested on some reasonable grounds – not to provide those very grounds retrospectively.

    The incident left a nasty feeling the whole procedure was designed to circumvent the normal process of applying for a search warrant. Such a warrant, of course, would have been unlikely to be granted, because there was, of course, no firm evidence that my friend had committed any offence.

    Another example:

    TV owners are routinely convicted of watching television without a licence purely on the basis that they have the necessary equipment to do so. But the law is quite clear that the equipment should actually have been +so used+.

    This has been pointed out to magistrates from time to time, but without any noticeable effect.

    The common thread is that the law is indeed becoming a matter of what the police and magistrates say it is, rather than what might be written on the statute book.

  16. Yes, they did that one to me and then stole a lot of evidence from the legal
    files, when being sued, I was angry they came and searched my property
    without telling me until after, even had the cheek to let themselves in with
    my key, nearly scared my mother to death she was in bed at the time, they arrested me on trumped up fabricated charge, to get at the files that proved
    they had forged evidence, Bastards!

  17. Yes, well note the cases you refer to, they removed the documents under
    a special clause of the law, still have the ticket from their pocket book, signed
    PC Glover, this was as illegal as it gets! They seem to be able to do anything.

  18. Hugo, the old fashioned Copper just used to give kid’s a clip of the ear,
    you should know they want 500,000 court case for apple scumping these
    day’s.

  19. Actually I saw an accident tonight at riverside, cyclist, 6 police cars attended,
    overkill or what!

  20. Peter, what happens is they claim they get information from people called
    “Pro Active Informants” which basically equates to this, If somebody does
    not like you for whatever reason, they call the police and make a false
    allegation, you’re a drug dealer or terrorist, the police or MP’s will never
    reveal their identities, even if you are de-arrested, the DWP have them
    working for them as well they pay them £10.00, they give false information
    to authorities, against people they have a grudge with!

  21. You’re right Johnney, they are secterian, just bully thugs in uniforms,
    but the british police force is officially refered to by some as a Paramilatary
    Force by some observers, I have read this at odd times.

  22. To Karl Fenn…

    You do seem to have a rather inordinately large amount of trouble with the police, in your life. Now, I am not suggesting any thing at all….but why could that be?

  23. Well if you can’t understand that from the blog, it might a good idear to go
    back to school.

  24. “there no such thing in law as a “random stop by the police” expressly for the purpose of demanding a specimen of breath”

    Technically true Mr Copper, but there is such a thing as a random stop at police checkpoint with the express purpose of questioning law abiding drivers in order to find grounds for requesting a specimen of breath, denial of such a request being generally taken as sufficient grounds for demanding a specimen of breath, Sneaky bastards these cops and all the weaselly legalese from XXXXX won’t make it better. There are also random stops because people are driving late at night/early in the morning – as the recipient of a few of these in my younger days I know they happen. And if they’re not allowed, well, cops breaking the laws, who’d’ve thunk it?

    “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”?”

    Ah, here we get to more distortions of the truth. Sean claims the limit is low, cop says not. Cop says over the limit is drunk, survey says “Bullshit!” Being marginally over the minimum that the cops would arrest and prosecute is not in any sense drunk. The impairment to the judgement and reaction is minimal and is much less than being slightly tired or slightly old.

    But I do like this: “Hello sir, I’m legally pulling you over to tell you I’m not allowed to pull you over to ask for a specimen of breath, but I will ask for your license and insurance and ask if you’ve had a drink today. If you say yes it will constitute grounds for demanding a breath test. If you say no I will say that you wouldn’t mind taking a breath test then, would you? Refusal to do so will constitute reasonable suspicion that you’ve been drinking enabling me to demand you take a breath test.”

  25. It does seem to help if you drive a really old and boring car.

    About 22 years ago, I began to own a Vauxhall Calibra 4×4 16v, when I was still rich and living in London. Within two months, I had been stopped by the police three times. Each time was in the early evening. All the occasions were at the north or south ends of the various Thames road bridges.

    On each occasion, I was required to “blow into a device”. (Don’t worry: I was entirely sober on all three occasions.)

    The fourth incident was after I’d been into Battersea Police stn to do something about reporting a burglary. The desk-sergeant was chatty and asked where I’d come from and where I was going, so i told him. I was going home after seeing a client and having a glass or two.

    When i arrived at my address, there was a police car and a police van, with their blue lights all flashing. I parked, and was immediately accosted by a fella, who required that I leave the vehicle and give him my keys. I was “invited” to blow into an electronic machine, in front of my neighbours, who had got out to watch the blue light business.

    The lights just about went up to a dim yellow, so i was in the clear, apparently. I knew nothing of how this business works. Before handing me back my car/house keys, the fella gave me a ticking-off. One of my neighbours (in London, nobody ever talks to their neighbours, ever, for any reason) asked me: “what’s all that about? Are you drunk?”

  26. Of course on the subject of Driving licences, under the wealfare reform act,
    which apparently became law today, the govenment will take away driving
    licences as punishment for not paying child support. Also today in the east
    of england from today police will have powers to take OAP’s drivers licences
    on road side and powers to revoke licences and stop them driving,albeit without any right of a trial before a court to prove a road traffic offence has been committed. Look forward to your comments XXXXX looks like something the east german
    “starsi” would have done thiry years ago. Where’s democracy gone.

  27. Looks to me David Davis, they probably made a note of your car in the
    book, hence why you were stopped, someone may have reported you to
    police on the suspicion of drunk driving, they have a grass line in Norfolk, people normally for whatever reason
    ring up anonymously if they don’t like you or have a gripe, lots of people
    get caught that way, we had one case a couple of years ago, where a
    neighbor reported her neighbor to the DWP, she secretly filmed him from
    her bedroom window cleaning his own window, he got prosectuted and
    lost his benefit, you simply can no longer trust anyone, people are becomming very nasty and vindictive, I can’t say I like england much
    these day’s, snoops everywhere, making peoples lives hell.

  28. God only knows when they will stop bringing in such rediculous laws, who ever thinks them, really, you couldn’t if you tried, these bloody half baked academics, how much is this going to cost the taxpayer in court cases!

  29. Peter, you have identified the problem, the law is effectively what ever they
    want it to be on the day, many wrongfull convictions for TV licences and
    imprisonments of course, Justice Authorities turn a blind eye to the fact
    the law has been broken, just to keep their “Trumpton Town” jobs!