Taking the blood option

In this post we will look at the recent changes to the law that affects people facing an investigation into drink driving.

Currently when you are stopped and the police suspect you of drink driving they will usually require you to provide a roadside sample of breath to determine whether you may be over the drink driving limit.  If you provide the sample and it turns out that you are over the drink driving limit then you will be arrested and taken to the police station where you are required to provide two specimens of breath into an evidential breath test machine, in London and Oxfordshire the most common machine is the Intoximeter.

Let’s assume that the lower reading in breath is below 50 microgrammes per 100ml of breath (I say the lower reading because that’s the only one the police are allowed to rely on) but above the drink driving limit.  Previously, the police would have been required to offer you the option of taking a further test, which is widely considered to be more accurate than the breath test.  You have the choice of saying yes or no but once you say yes it is the police who decide whether that further test should be blood or urine.  Mostly, the police will choose blood because… well who wants to watch you take a wee then keep a fridge full of pee in their custody suite?

The blood option has been the norm for decades for the very simple reason that blood tests are more accurate then breath tests.  Despite this, the Government changed the law on the 10^th April 2015 to abolish the option for drink driving suspects to choose to provide a blood or urine sample.

This law change means that if you provide a specimen of breath that is above the drink driving limit but below 50 microgrammes you will be automatically charged with drink driving and sent to court even though there is a risk that the breath test is not correct.

It would be nice to believe that the law had been changed because the breath testing equipment used in drink driving investigations had become more reliable; however, the machines have not changed since the Intoximeter EC/IR II machine was released in 2004.  If anything, our experience shows that the machines are becoming less reliable as we see an increasing number of people failing to provide specimens due to faulty infrared sensors in the machines across London and Oxfordshire.

If you have been affected by the recent change to the law and want to instruct an expert drink driving solicitor then do not hesitate to contact us on 020 8242 4440 or visit our website.

Drug driving laws now in force

Drug driving laws are in force from today

Today new laws came into force making it a crime to drive with certain drugs in your system.  The new drug driving laws are similar to drink driving laws but there are important differences everybody needs to know.

Drug driving includes not only driving a motor vehicle but also attempting to driving and being in charge of a vehicle while you have drugs in your system.  Being in charge usually means having the keys and being in or near the vehicle.

It has been reported in the media that drug driving will be a zero tolerance offence, i.e. if any of the prohibited drugs are detected you will guilty of a crime  – one of the government’s own advisers spoke on the radio this afternoon saying just that.  But, it isn’t true.  You will be allowed to drive with some drugs in your system and the amount will depend on the drug, so the limit for cocaine is 10 microgrammes per litre of blood while for Temazepam the limit is 1,000 microgrammes per litre of blood.  

Much of the media reporting of the drug driving offence has concentrated on illegal drugs, but there are a number of prescription drugs that are directly prohibited from use before driving.  There are also a number of prescription drugs and legal highs that contain the same active ingredient as the prohibited drugs and so will produce a positive result on the drug driving test equipment.

Driving under the influence of drugs has been a crime for a very long time.  The old law prohibited driving while unfit through drugs; however, the new drug driving law makes it an offence to drive with drugs in your system regardless of whether the drug renders you unfit or not.  Some part of the media have incorrectly reported that people will not be prosecuted unless the drug renders the person unfit – that is simply not an accurate reflection of the law.

If you are taking prescription medication you must check with your doctor whether it is safe for you to drive or not as the consequences of making a mistake can be catastrophic.  Conviction will mean a driving ban and could result in a prison sentence.

In the next article we will look at the defences to drug driving allegations.

Can police use any blood given at a hospital in a drink driving case?

Can the police use any sample of blood taken from a suspect as part of their investigation into a drink driving or excess alcohol offence?

A common scenario we at the London Drink Driving Solicitor come across is a driver is arrested on suspicion of driving with excess alcohol.  He or she is taken to hospital for one of any number of reasons and, while there, a doctor or nurse takes a specimen of blood from them as part of the diagnosis/treatment.

Often, the police are unable to require the person to consent to providing a specimen of blood for alcohol analysis as part of their investigation due to the ongoing treatment the person is receiving.  By the time the police can make the request, several hours may have passed meaning that the alcohol reading will no longer reflect the level of alcohol in that person's system when they drove.

The question then arises whether the police can legitimately use some or all of the sample of blood taken by the medical staff as part of the diagnosis/treatment?

The answer is found in section 15 of the Road Traffic Offenders Act 1988, which deals with the use of specimens that have been taken for use in the prosecution of drink driving/excess alcohol cases.

Section 15(4) tells us that "A specimen of blood shall be disregarded unless - (a) it was taken from the accused with his consent... or (b) it was taken from the accused by a medical practitioner under section 7A of the Road Traffic Act 1988 and the accused subsequently gave his permission fora laboratory test of the specimen."

Section 7A allows a medical practitioner who is NOT connected with the accused's clinical treatment to take the specimen of breath where the accused is unable to give consent.

Section 15(4) is somewhat vague on the meaning of consent and could on one interpretation allow for any sample to be used for laboratory analysis.  However, elsewhere the Act tells us that the police constable must inform the suspect that a requirement to provide a specimen has been made for the purposes of the investigation and that failure to provide it will render him or her liable to prosecution.  The warning must be given by a police officer and not by a medical professional.  We can therefore conclude that "consent" must mean consent that is informed by the appropriate warning being given by the officer.

Since no such warning would have been given prior to the taking a blood sample for use in connexion with the treatment or diagnosis of the suspect's condition we can conclude that it would not be lawful for the police to use such a sample as part of their investigation into a drink driving or excess alcohol allegation.