It has previously been the case that where a driver provided a breath specimen at the police station with a reading of 50 or lower, they had a statutory option to provide either a blood or urine specimen as an alternative. This often had the effect of delaying the procedure and therefore lowering the alcohol levels of the driver, sometimes to the extent that they were below the legal limit.
As of midnight on the 9th April this option has now been removed and the only circumstances in which a blood or urine sample can be given are in cases where the breathalyser is not functioning correctly, or the driver has a medical condition that prevents them providing a specimen of breath.
Previously around one in ten people would have been offered the option of providing a blood or urine specimen under these provisions. Of these people, around 25 per cent would not have faced prosecution as their reading would have come back below the limit. The change in these provisions means that these people would now almost certainly be prosecuted for drink driving.
This may also give rise to an increase in prosecutions for failing to provide a specimen of breath; many people are already aware that blood and urine can sometimes be given as a sample and may feel that this allows them grounds to refuse to provide a specimen of breath. The law is very clear on this point and anyone failing to provide a specimen without reasonable excuse will face prosecution and a minimum 12 month disqualification if convicted.
It has been argued for some time that the law required some updating, as the legislation was set out in 1988 when breathalysers were far less reliable. It was felt that there needed to be some protection for motorists to ensure that those close to the legal limit were given the benefit of any doubt. However with the development of more accurate machines this has now become less of a necessity.
There will however still be a margin of error allowed for breath readings. The Home Office circular 46/1983 instructs that any readings of less than 40ug in breath should not be prosecuted, even though the legal limit is 35ug of alcohol per 100ml of breath. It is therefore clear that the government now feel this is a sufficient guard against any wrongful prosecution.
By motoring offences specialist, Alex Garner