David Barton's Motoring Law Blog
It’s that time of year again.
Pretty well every police force will shortly be starting its annual Christmas drink drive campaign, but this year it will be a little different as forces also seek to apprehend those who drive whilst under the influence of drugs.
There has long been a problem for the police, and that is the absence of a quick method of determining if a driver has drugs in his body. At the beginning of this year it was announced that police forces would have access to “spitalysers” , devices that can be used at the road side to instantly indicate if a driver has taken cannabis. The police have long been able to use breath testing devices to test for alcohol, but drug impairment has always been difficult to measure without blood samples (which take a while to test) and evidence of impairment. Whilst the devices are not going to be ready for Christmas, police are nonetheless upping their game on drug driving.
No one will condone drink or drug driving, but there does need to be an awareness of the legal framework that applies in all such cases. This year is also different for another reason; Scotland will shortly change its law to reduce the limit from 80 in blood to only 50. Drivers crossing the border might be legal in England and Wales but illegal in Scotland.
Drivers will need to be particularly aware of the side effects of prescribed drugs and those purchased over the counter. This applies to a number of pick me ups that deal with flu and cold symptoms. Earlier this year the driving limits for 8 prescribed drugs were published.
A good number of these are present in frequently used medications and drivers do need to have an awareness of this. It creates a serious problem; what to do with a driver who has taken completely legal drugs on prescription and had no knowledge he would be affected? The courts will be dealing with those who have taken illegal drugs with the sole intention of getting high, and those who have taken legal ones with the sole intention of getting better or just being able to get through the day.
Spot checks purely to determine if someone is drink driving are not strictly legal but the police need only give a simple reason for stopping or enquiring. Once engaged in conversation the police will look for glazed eyes or the smell of alcohol.
The police will bring an allegation of driving whilst unfit through drugs if they have reason to believe that you were driving a motor vehicle on a road or other public place after consuming drugs and if that your driving was impaired as a consequence. The police might have followed you for a bit and seen how you drove, or you might have been involved in an accident to which the police were called. The accident might not even have been your fault, but if you show signs that you have drugs in your body you will likely face an investigation.
Sussex Police are warning that motorists charged with drink or drug driving offences throughout December can expect to see their names published as part of a continued crackdown on offenders. They did it last year and whilst the deterrent motives are understandable, some drivers will be named and shamed who are never in fact convicted. It is understandably controversial.
Drug and drink driving are very technical areas of law with all kinds of safeguards built into the process, and inevitably some prosecutions are not successful for perfectly proper reasons.
I expect other forces to be similarly vigorous with publicity campaigns to increase awareness and to encourage reports by members of the public. In fact this year Susses is going to run its campaign jointly with Surrey. I am sure Kent and Essex will be similarly vigorous with drink and drug driving.
Something what is frequently overlooked by drivers is the effect of morning after driving, and driving after a train journey from work. The rate at which the body metabolises alcohol is easily misjudged and a heavy night’s drinking followed by an early drive to work can catch people out. The same is true with those who enjoy a drink in London after work and take a train home. Many commuter stations have police ready to check and I have represented a good many caught out. It’s a mistake to think that some sleep or strong coffee will help; they don’t get rid of the alcohol.
The paperless driving licence is here (almost)
The paper tax disc has now gone, and January 2015 will see the demise of the paper counterpart driving licence. From January 2015, DVLA will no longer issue the paper counterpart to the photocard driving licence.
What does it mean?
In purely practical terms very little because no one needs to actually do anything apart from keeping hold of the photocard part. There will be a number of drivers who do not possess a photocard licence and so they will simply retain the old style paper one.
Whatever driving entitlements you have to drive will remain recorded at DVLA, along with details of penalty points and endorsements. Those have until now been recorded on the paper part but from January 2015 you will be able to check your record online, or by post and telephone.
Anyone who does not think they will need the paper licence after the change can dispose of it, but you shouldn’t do that before 1 January 2015.
Organisations and businesses that check the driving licence counterpart
As well as being able to check your own record, DVLA is developing a new digital enquiry service for launch later this year that will allow organisations and businesses to view information they can currently see on the driving licence counterpart.
This will likely apply to employers, car hire companies and insurers. The insurance industry sees it as an important part of the drive to reduce fraud making it more difficult for those buying insurance to hide their records. DVLA will release such information to those that show a right to see it and with the consent of the licence holder.
Not many people know this….
There is a piece of legislation that seems to be increasingly catching people out. It’s not particularly obscure but DVLA has not exactly shouted about it.
In early 2011 a concept known as Continuous Insurance Enforcement was launched and a fixed penalty system was introduced to try and reduce insurance evasion. It is now an offence to be the Registered Keeper of an uninsured vehicle, and it’s the Keeper who gets the grief.
DVLA carries out searches of the Motor Insurance Database to see which vehicles are not insured. It compares them with its own database of vehicles to see if an offence has been committed.
If you are the registered keeper of a vehicle you must either insure it or declare it off road. Section 22 of the Road Safety Act 2006 imposes statutory insurance requirements on registered keepers and these apply even if the vehicle is incapable of being driven.
To give an example, I recently advised a client who had received a Summons from his local court in proceedings initiated by DVLA Enforcement Centre in Swansea. It alleged that a motorcycle that was registered in his name was not insured and that he was in breach of sections of the Road Traffic Act 1988 as a consequence.
He was surprised to receive the summons because the bike had been written off in an accident some months previously and was effectively in bits in his garage. It was not capable of being ridden and he had not got round to disposing of the parts.
Shortly after the accident he cancelled the insurance policy and claimed a refund. He sensibly thought what was the point in having an immovable bike insured for third party risks if it was never going on the road?
Given its state he gave no thought to declaring it “off road” by completing a Statutory Off Road Notification.
What he did not know was that DVLA carried out a check after he cancelled the policy to see if it had been declared off road. It hadn’t, and DVLA sent the owner a fixed penalty notice followed by a summons to appear in court.
The summons was based on a failure to either insure, or declare off road. I am aware of a few people who have been caught out by this, thinking understandably that it’s a waste of money to insure an immovable vehicle but overlooking the need now to complete a SORN.
Until 2011 it didn’t matter what you did, but now it has to be one or the other and DVLA are picking up on these omissions and starting proceedings. I am aware from seeing papers in these cases that they are not accepting ignorance of the law as an excuse, so beware.
It had a good life they will say as we literally and metaphorically tear up our paper tax discs on the 1 October 2014. The entire system is going digital and they are no longer required. Gone at last will be irritating failure of the plastic to stick to the screen or losing it down the side of the seat, but gone also will be the opportunity to say it’s in the post. In addition a series of new laws becomes effective that will impact immediately on owners, buyers and sellers of vehicles that need to be road taxed.
Unless your vehicle is exempt (for example made before 1.1.74 and therefore historic, wholly used for agricultural purposes, or connected with the provision of disability services), it will need to be either be taxed or declared off road (known as SORNed). Nothing else will do.
People might be surprised to learn just how much communication goes on between DVLA, the Police and motor insurers. Together with the use of Automatic Number Plate Recognition (ANPR) cameras and the Police National Computer the new regime will enable untaxed vehicles on roads to be quickly identified.
According to a number of surveys amongst drivers there is a low level of awareness of the changes, but they are less than a month away.
So what is new?
If your existing tax disc has time to run you need do nothing apart from remove it if you wish. It isn’t required any longer and does not need to be displayed.
However, when it does expire you will need to ensure you renew it in time. This can be done on line via the DVLA web site or at Post Offices if you do not have internet access. DVLA will still send out reminders and renewal is done by using the 16 digit reference number in the reminder, or the 11 digit number in the log book.
ANPRs are very common and will recognise a vehicle that has not been taxed. A police spot check will do the same, and it’s the driver who gets penalised with a fine and back tax. It raises the need to check to make sure a vehicle is taxed before it’s driven, and this will apply to borrowed cars, as well as hired and courtesy vehicles. The new regime will mean a greater chance of being caught.
The tax transfer option will disappear. When a new car was purchased, particularly in a private transaction, it was commonplace for the buyer to take over the unexpired period of the disc. That now goes completely and a new owner cannot use it. There is an obligation on the seller to inform DVLA immediately and to reclaim any unused tax, and for the buyer to make a payment from the date of ownership. The seller has to submit a V5C, and should not rely on the buyer to do so. If you do, you run the risk of picking up responsibility for offences committed by the buyer.
Fines for using an untaxed vehicle on a road are £1,000 plus back tax. Drivers can be issued with a non endorseable fixed penalty plus back tax, and so it’s worth getting it right.
You can now pay by direct debit, monthly, twice yearly or annually and this is very helpful. Monthly or bi annual direct debits will attract a 5% surcharge which is better than the 10% for non direct debit payments. Annual direct debits of course have no surcharge, and whichever appeals it’s a good way of avoiding a problem.
According to the Department of Transport 99% of drivers tax their vehicles on time, but the changes mean there will need to be greater care than before.
One other thing to bear in mind. Just because you keep a vehicle off road (perhaps it is undergoing long term repair) you will not be completely free of potential difficulty. A little known set of regulations require all such vehicles to be insured against third party risks unless a SORN has been submitted to DVLA. The insurance industry informs DVLA when an insurance policy on a vehicle has been cancelled, and if it hasn’t been SORNed, DVLA will start its own proceedings in the Magistrates Court against the registered keeper. The fact that the vehicle is off the road and indeed may be undriveable will not provide any defence. It catches people out.
Bad driving is likely to cost us more, if the government has its way over increasing the amount magistrates can fine for motoring offences.
Under the terms of a draft statutory order issued by the government earlier this month, the levels for fines would be raised substantially – in some cases by four times the present amount.
The figures have yet to be approved, but newspapers have already picked up on the proposal to raise level four offence penalties (such as failing to produce an insurance certificate, or speeding on the motorway) from £2,500 to a maximum of £10,000. Other penalties to increase, would include the present £500 maximum for evading a train fare, which would be hiked to £2,000.
These proposals have got the legal world talking, with experts condemning the increases as unrealistic. The UK criminal law website commented: “Fines have to be proportionate to the offence, but also are measured by the offender’s ability to pay the fine. For example, if you earn £400 per week after tax, a fine of £10,000 for speeding on the motorway is likely to be considered grossly disproportionate to the offence, but also wrong in principle based on your ability to pay – it would take months and months for you to pay that fine.”
Of course, we’ve all seen the headlines about the highly paid footballer being fined a paltry sum for speeding, but the majority of us are nowhere near that league (if you’ll pardon the pun) and would find it difficult, if not impossible, to raise the sums being proposed.
The law site blogger comes to the conclusion that levels of fines for motoring offences will not rise until this question of fairness and percentage of relevant weekly income relating to court fines has been settled.
So are the rises really necessary? Government statistics show that the numbers of drivers exceeding the speed limit of 70mph on a motorway in 2012 dropped by one percentage point from the previous year, to 48 per cent. Of those, only 12 per cent were checked at doing 80mph or more, also a downward trend. At the lower end of the scale, however, there was an increase of three percentage points in the numbers of vehicles exceeding the 30mph limit on UK roads.
Heavy goods vehicle drivers were particularly poor at keeping to the speed limit, with an alarming 82 per cent of drivers found to have exceeded the 50mph limit for their vehicles on dual carriageways. Motorcyclists were the most inclined to speed, with 18 per cent travelling at least 10mph above the legal limit on motorways in 2012.
The jury is out, metaphorically, on whether the fine increases will be brought in. It’s all a question of balance between ensuring penalties remain a deterrent for bad drivers, or become an unachievable financial burden, with the only alternative being magistrates sending offenders to an already overcrowded prison for non-payment.
There was much furore recently on news that a driver in his 20's had been convicted of driving at speeds up to 149 mph on the M25 near Swanley in Kent.
The man appeared at West Kent Magistrates court in March and was banned for 6 months, fined £600 and required to pay costs and a victim surcharge amounting to £150.
The story was released by the Institute of Advanced Motorists (IAM) following a freedom of information request. Which also revealed other drivers guilty of driving significantly over the speed limit. Other cases included:
- a driver in Gateshead recorded doing 96 mph in a 30 mph zone.
- a motorist near Wendover caught doing 127 mph in a 60 mph area.
- a driver recorded doing 119 mph on the A414 Stanstead Abbotts which has a 50 mph limit,
- a motorist caught doing 113 mph in a 40 mph zone speed limit enforcemenin Lincolnshire.
Obviously driving at these sorts of speeds is not to be condoned,. It puts other road users and the drivers themselves in danger. Fortunately stories of such excessive speed are rare.
One less publicised statistic that accompanied the report came via a freedom of information request from Radio Kent. Apparently the number of drivers issued with speeding notices in 2013 was 66,357 up from 34,438 in 2010. That’s almost twice as many motorists being caught speeding in three years.
Are the drivers of Kent driving faster or are Kent Police enforcing speed limits more aggressively?
What do you think?
Driving restrictions take another turn later this year, with the introduction of new limits on the use of 16 drugs while behind the wheel.
After major rethink of the system, involving two consultation periods, the Government will impose the new regulations in the autumn.
The recommended limits for the drugs which have been added to the Government list will distinguish between eight legal, prescribed, drugs and eight illegal drugs. The new rules will mean it will be an offence to drive and to be over the generally prescribed limits for each drug, bringing the law on drug-driving into line with drink-driving.
Like drink driving, there will be no "zero tolerance" approach because it has been recognised that drugs taken for medical conditions can be absorbed in the body, to produce trace effects. The regulations will also recognise that different drugs are broken down at different speeds and that will be reflected in the differences between the limits.
The Government is now working with the medical profession to ensure healthcare professionals and patients are taught about the new drug-driving offence. An advertising campaign later in the year will make drivers aware of the changes to the law.
The limits to be included in the new regulations are:
1Benzoylecgonine, 50 µg/L
2 Cocaine, 10 µg/L
3 Delta–9–Tetrahydrocannabinol (Cannabis and Cannabinol), 2 µg/L
4 Ketamine, 20 µg/L
5 Lysergic Acid Diethylamide (LSD), 1 µg/L
6 Methylamphetamine - 10 µg/L
7 Methylenedioxymethaphetamine (MDMA – Ecstasy), 10 µg/L
8 6-Monoacetylmorphine (6-MAM – Heroin and Morphine), 5 µg/L
Generally prescription drugs
1 Clonazepam, 50 µg/L
2 Diazepam, 550 µg/L
3 Flunitrazepam, 300 µg/L
4 Lorazepam, 100 µg/L
5 Methadone, 500 µg/L
6 Morphine, 80 µg/L
7 Oxazepam, 300 µg/L
8 Temazepam, 1000 µg/L
From this autumn, drivers who take prescribed drugs and those bought over the counter will need to be very aware of their effects. This will apply to many pick-me-ups that deal with flu and cold symptoms – perfectly timed for autumn.
At present there is no law expressly making the use of laser jammers unlawful, but a number of prosecutions arising out of their use makes it risky to use one.
The consequences can be serious.
There are many devices freely and relatively cheaply available for purchase over the internet that are said to perform a variety of functions from parking sensors to opening garage doors. Some are very sophisticated and the function can be switched by the driver.
Using one to interfere with a speed detection device being operated by a police officer could well result in an arrest and charge for perverting the course of justice.
Perverting the course of justice is a serious offence and on conviction carries life imprisonment. Long term imprisonment tends to be reserved for those who interfere with trials or investigations for example by threatening witnesses.
Nonetheless drivers using such devices to stop or interfere with police speed detection do face a Crown Court appearance and a serious risk of prison and disqualification.
I represented a client who was travelling at a speed modestly in excess of the speed limit. He approached a Traffic Officer deploying a laser device to check his speed, and on each occasion he attempted to do so the device showed “error”.
The Officer was sure something was stopping the device from registering the speed, although it did perform its normal function of recording the vehicle. The video enabled the speed of the vehicle to be checked, by working out how long it took to pass fixed points. It was easy to see the vehicle was speeding.
In this instance the police obtained a search warrant and attended my client’s home to search his vehicle. That revealed a device fitted behind the front number plate and a police expert was able to deconstruct it and demonstrate its ability to diffuse the laser beam from the speed gun.
My client was charged with perverting the course of justice and his case moved swiftly from the Magistrates to the Crown Court.
Why perverting the course of justice?
The simple answer is that there is no statutory offence committed (because there is no legislation outlawing the use of these devices) and so there is no alternative, with one minor exception. If the operator of the speed gun is a police officer an alternative might be a charge of obstructing a police officer in the course of his duty. That can be dealt with in the Magistrates Court and can be quickly over.
However there is a problem if the person operating the speed gun is not a police constable as properly defined. Many are not and are Police Support Employees with speed equipment training.
The Crown Prosecution Service or even the court may be very reluctant indeed to see a drop from perverting the course of justice to obstruction if the person obstructed was not a police constable.
What is perverting the course of justice?
The offence is committed where a person:
- does an act (a positive act or series of acts is required; mere inaction is insufficient)
- which has a tendency to pervert and
- which is intended to pervert
- the course of public justice.
The course of justice includes the police investigation of a possible crime and it is not necessary for legal proceedings to have begun.
In this way it fits the use of a laser jammer.
In my case we had a very helpful Court who was prepared to view it leniently. The CPS was determined to go to trial over knowledge of what the device would do, but the Judge gave an “indication” of what he would do after a guilty plea, and my client left with a modest fine and a conditional discharge. It could have been far worse but he had good legal advice and excellent counsel.
Kent police have just released the results of their latest Christmas drink drive campaign and on the face of it it presents good news. Although the number of tests administered increased on last year the number of motorists testing positive was down.
Last year between 1 December 2012 and 1 January 2013, 277 motorists were tested and 178 (64%) were positive.
This year between 1 December 2013 and 1 January 2014, 334 motorists were tested and 156 (47%) were positive. It is noticeable how many more motorists were tested this year; Kent police did say they were going to be carrying out more stops and tests and they plainly did so.
Given the increase in the numbers tested from 277 to 334 (an increase of just over 20%) a reduction in real numbers of positive tests is to be welcomed. However, the statistics still reveal large numbers of drivers on the road whilst over the limit.
Why would this happen despite so much publicity and a significant police presence?
Undoubtedly some drivers will have known very well that they were over the limit and chose to drive anyway, either not caring or taking a chance. Some may have been the victims of spiked drinks and may not have been aware of what they were drinking. I would expect, however, that the majority simply didn't realise how little it takes to put them over the limit. Wine is often served in large glasses and can be 12% proof or more, and lager from bottles is stronger than people sometimes realise. People know that it's ok to drink some alcohol, but I think there is genuine difficulty in assessing how much.
I also think that a good number were caught out the morning after a party and failed to realise how long the alcohol would take to clear their system (see my earlier blog on morning after drink driving).
The statistics for arrests for drink/drug driving by area make interesting reading. While all areas of the county show levels of arrests Medway stands out as the drink drive capital of the county.
|Tonbridge and Malling||16|
Frank Sinatra reputedly joked "I feel sorry for people who don't drink. When they wake up in the morning, that's as good as they're going to feel all day."
The reality unfortunately is that people who drink the night before could find their day going rapidly downhill.
According to research from LV= car insurance ‘morning after’ drink driving is on the increase with more motorists putting themselves and other road users at risk. There appears to be a widespread lack of understanding of just how long it can take for the body to get rid of alcohol with many drivers seriously underestimating the time it takes. It is perhaps no coincidence that last year France introduced the legal requirement to carry a breathalyser to self-test. The lack of knowledge is widespread, leaving drivers here to use judgment. The problem is that in many cases judgment is either flawed or distorted by drink.
It takes about an hour for the body to get rid of one unit of alcohol although this varies depending on body mass and gender. Nearly half of drivers spoken to did not know how long they had to wait to be clear to drive, or underestimated it.
The research suggests that since 2012 one in 30 (3% or 1.2 million) motorists have driven while still over the legal alcohol limit the ‘morning after’ and in many cases these drivers did not realise.
Although the number of drink drive arrests is falling, police arrested 4 per cent more drink drivers between the hours of 6am and 8am in 2012 than in 2011.
Among all those drivers who knew they were over the drink drive limit in the morning, one in five (19 per cent) said they believed they were okay to drive at the time, that driving was unavoidable (37 per cent) or it was just a short distance (26 per cent).
Close to one in 10 (7 per cent) thought it was acceptable as they weren’t driving on a motorway and one in eight (13 per cent) said they were only a little over the limit so it did not matter.
The research suggest that ‘morning after’ drink drivers are on average five hours away from being sober enough to drive when they get behind the wheel.
These are in many ways quite surprising statistics. I think that there is a real lack of awareness about how the body deals with alcohol. I frequently hear people saying they thought a night’s sleep or even a few hours is sufficient to get rid of alcohol consumed the night before.
The LV= research shows that men are more likely than women to be over the limit when they drive the morning after a night drinking (78% and 22% respectively). This is because men will consume a greater number of alcohol units on a night out and are more likely to use their car the morning after. LV= says that on average, morning after drivers consume 19 units of alcohol (e.g. seven pints of strong lager or six 250ml glasses of wine) and then drive their car just 10 hours after having their first drink – meaning that they are five hours away from being sober enough to drive legally.
The legal limits allow a driver to have a maximum of 80mg of alcohol per 100ml of blood, 35mg per 100ml of breath or 107mg per 100ml of urine. Figures suggest this equates to approximately four units for an average man and two to three units for an average woman but the amount varies between people and needs treating with real caution. It takes about an hour for the body to break down one unit of alcohol, but that this can vary according to on a number of factors including the person’s age, weight, gender and metabolism. Estimating or guessing is a very risky business.