Drink driving law in Scotland already differs from our neighbours in the south and it looks like it is set to differ even more in 2013. Drivers who cross the border from England to Scotland after drinking alcohol could end up in jail, lose their car and face a ban.
Scottish Government Ministers have approved a stricter drink-drive limit – lowering the legal level of alcohol from 80mg of alcohol per 100ml of blood (the legal limit in England and Wales) to 50mg.
The new drink driving law in Scotland means some people will be over the limit without realising it. This law removes any confusion over the old “two drink” limit and lets people know that it is best to avoid all alcohol if driving but it may well catch out the “morning after” driver. Still under the influence of a heavy night on the sauce and driving north of the border then beware because you could end up losing your car to the police.
Drink Driving Law In Scotland Now In Line With Europe
In 2009 we saw of flurry of interest from the national press when the car forfeiture process was instituted throughout Scotland. In the past the Crown had been entitled to move for forfeiture of any vehicle used in the commission of a crime but it was seldom used.
In 2013 we regularly appear with clients whose vehicle is under threat of forfeiture. The disproportionate nature of this scheme means that it is open to wide criticism and a reluctance from many on the bench to use it unless there are strong arguments for forfeiture of the car,van,truck!.
Often the poor Procurator Fiscal in court has no real idea why he has been ordered to ask for the vehicle but does so because on of his seniors has written on the case papers to ask for same.We must therefore assume that there is a Crown policy to request forfeiture in all cases where the The scheme was initially rolled out in 2009 with a focus upon repeat offenders, however, accused persons convicted of failing to provide specimens for analysis or with a reading in excess of three times the permissible limit are now at risk of losing their vehicle. There is very little guidance on the issue and the application of the car forfeiture scheme varies throughout Scotland.
Graham Walker commented on Drink Driving Law in Scotland in one of Scotland’s leading daily newspapers
The main legislation governing the Law in Scotland on Drink Driving can be found in the the Road Traffic Act 1988. Legislation that applies UK wide.
In particular s.5(1)(a)and (b) of the Road Traffic Act 1988 and Sections 7, 8 and 9 of the Road Traffic Act 1988 provides the procedure which must be followed by the police when samples of blood/urine are taken.
The admissibility of those specimens that are to be used as evidence against a motorist depends upon the procedures being followed correctly. The law provides protection to the motorist to ensure that these procedures are followed in a rigorous and therefore fair manner.
We always seek the 4:8:1 form or case documentation that is used to record the procedures followed and this often acts as the cornerstone of our cross examination in such cases. We will also seek sight of the intoximeter log to ensure that it was working properly on the day of the given sample.
As a suspected drink driver you have a legal obligation to provide a laboratory sample when one of the four reasons set out at section 7(3) occurs. BUT before such a sample is taken the driver needs to be provided with certain information by the police:
- he has to tell the motorist the reason under terms of s.7(3) why breath specimens cannot be taken or used in this matter;
- he should tell the driver that in those circumstances he is required to give a sample of blood or urine, but that the officer will decide which. Many drivers believe that they have the choice but this is wrong, the choice is with the police officer dealing with the case.
- he must warn the driver that a failure to provide the sample required may result in prosecution;
- and if he has asked for a sample of blood,
- he should ask the driver if there is any medical reason why a specimen cannot or should not be taken by a doctor
When, in the circumstances set out at section 8(2), a driver may choose to replace a breath specimen by supplying a laboratory sample,
The officer should inform the driver of the nature of the option open to him and what will be involved if he exercises it; What we have a great deal of experience of is that motorists tell us that they asked the police officers conducting the test if there is any point in seeking a blood sample and they have received a negative response and been told that the reading is always higher.
Well the numbers might be higher (As the type of reading is different but the reading will OF COURSE be lower….common sense tells us all that alcohol degenerates in the body as time passes)
- he must inform the driver that the specimen of breath which he has given containing the lower proportion of alcohol exceeds the statutory limit; but does not exceed 50 microgrammes of alcohol in 100 millilitres of breath;
- he should inform the driver that in the circumstances he is entitled to claim to have this specimen replaced by a specimen of blood or urine if he wishes; Ãƒâ€šÃ‚Â If there are medical reason why you cannot give blood then make sure that these reasons are stated and recorded.
- We had aÃ‚Â widely reported case where our client had been simply ignored when he told the police about his medical condition but fortunately we had managed to secure evidence of what actually happened at the time of his arrest and the Crown subsequently dropped the charge.
- he police officer should ask the driver if there are any medical reasons why a sample of blood cannot or should not be taken. Having read the above if you think the procedures for you were any different then get in touch and we may be able to win your case and save your driving licence.
The main piece of advice in relation to drink driving charges in Scotland is that you should cooperate fully with the police and if your reading is <50 then take the opportunity that the police officer will give you to provide either blood or urine. (Usually blood in Scotland as some police authorities consider it a health risk for their officers to be touching urine samples)
Remember that although the police officer is talking to you about blood OR urine, he/she will have the choice not you. If you have a health concern, asthma, a gagging reflex a phobia then tell them and ask that it is noted on the form.
If blood is used you will be offered a sample. You should take it and get in touch with us as soon as possible. Keep the sample in the fridge until you get the chance to have it analysed by a forensic toxicologist.
Drink driving law in Scotland is complex and is affected not just by the statutes but by recent precedent (Case Law) so call us on 0800 612 9597 and we will help with analysis of your sample and provide you with a free case consultation. Do not delay as we may require to act fast to preserve evidence in your case. You can email us at firstname.lastname@example.org for a free online case assessment and fixed fee quote.