Drink,Drugs and Driving — A Survey

The Botanic Garden, Pt. 1, Canto i, 289.

The Locomotives Act, 1865.

The Locomotives on Highways Act, 1896.

Othello III, iii, 331.

Criminal Justice Act 1925, sec. 40.

Road Traffic Act 1930, sec. 6.

Magistrates Courts Act 1952, sec. 25. In Scotland the choice lies rather with the prosecutor who may bring his case summarily (judge) or under solemn procedure (judge and jury).

The Recognition of Intoxication, B.M.A., London, 1954.

Recognition of Intoxication: Revised Edition. B.M.A., London, 1958.

Relation of Alcohol to Road Accidents, B.M.A., London, 1960.

Drew G. C. Colquhoun W. P. Long Hazel A. —Effect of Small Doses of Alcohol on a Skill Resembling Driving: M.R.C. Memo. 38, H.M.S.O., London, 1959.

Road Traffic Act 1960, sec. 6.

Road Traffic Act, 1962, sec. 1.

Road Accidents in Great Britain 1973, H.M.S.O., London at p. xi; and see note 15.

The total offences prosecuted in England and Wales appear to have been:.

The Drinking Driver, B.M.A., London, 1965.

Road Safety Act 1972, sec. 1(i) as re-enacted in Road Traffic Act 1972, sec. 6(i).

There cannot be clinical examination without consent. If refused the doctor may still observe but may not actively examine the accused. Refusal to provide blood or urine for analysis in an impairment case may be treated as supporting the pro-secution evidence: Road Traffic Act 1972, sec. 7(i).

Relation of Alcohol to Road Accidents, B.M.A., London, 1960 at p. 25.

Walls H. J. —The Use of Chemical Tests for Alcohol in Traffic-Law Enforcement in Great Britain 1946–61, in Alcohol and Road Traffic: Proceedings of Third International Conference on Alcohol and Road Traffic, B.M.A., London, 1963 at p. 239.

Nystagmus may have figured too largely in impairment cases though perhaps im-perfectly understood. Cf. Medico-Legal Aspects of Acute Alcoholic Intoxication in Forensic Medicine: A Guide to Principies: Gordon I. Shapiro H. A. Churchill-Livingstone, 1975 at p. 362.

“Convictions are rarely obtained at blood alcohol concentrations under 150 mg./100 ml.”—Havard, J. D. J. in Road Safety Bill—A Medical View [1967] Crim. L.R. 151. “A smooth tongued driver together with a glib lawyer can get away with much in our Courts” according to Freeman, S.: The Drinking Driver—Quo Vadimus in Alcohol and Road Traffic: Proceedings of Third International Conference on Alcohol and Road Traffic, B.M.A., London, 1963, at p. 326.

“The test of impairment has always been an imprecise one involving a value judgment by magistrates or jury”— Smith J. C. Hogan Brian : Criminal Law 3rd Ed. Butterworths, London, 1973 at p. 377.

The official Publicity campaign which accompanied the introduction of breath testing has not been regularly sustained, but eight years later almost every daily newspaper still mentions brief case reports. The drink-driving law represents the most publicised criminal law of the Century. For the view that the best is the enemy of the good in this connection see Leeming J. J.: Road Accidents, Cassells, London, 1969 at p. 182.

Simpson Joseph Sir : Police Procedure in relation to the Drinking Driver, in Alcohol and Road Traffic: Proceedings of Third International Conference, London, 1963 at p. 51.

Walls H. J. cit. supra at note 20.

The Drinking Driver cit. supra at p. 38.

White Paper on Road Safety Legislation 1965–66 H.M.S.O. (Cmnd. 2859) London.

The definition of the breath test in section 12(i) of the Road Traffic Act 1972 coupled with the evidential restriction upon the proving of excess blood alcohol in section 6(i) together secure that the breath test shall be of no evidential value.

The White Paper (see note 28) proposed random tests. The 1972 Act however con-ferred no power of random testing. Cf. Harris v. Crowson [1973] Crim. L.R. 121 D.C. There is however an element of randomness in that the innocent driver who may have been involved in an accident through the fault of another driver has to sub-mit if asked. And there are endless reasons for stopping a car—as for example in R. v. Herd [1973] R.T.R. 165.

Road Safety Act 1967 sec. 3(iii). The same result is now achieved by Road Traffic Act 1972 sec. 9(3), sec. 93 and Schedule 4.

It is not always realised that physical methods of analysis can recognise vanishingly small quantities of blood: Walls H. J. Brownlie A. R. —Drink, Drugs & Driving, Sweet & Maxwell, London 1970 at p. 82.

Curry A. S. Walker G. W. Simpson G. S. (1966) The Analyst, 91, 1088. For an explanation of gas chromatography see Walls & Brownlie cit. supra note 32 at pp. 82–87.

Road Safety Act 1967, sec. 2(2) and 3(2) re-enacted in Road Traffic Art 1972 sec. 8(2) and 9(2). There does not have to be proof of accident: Moss v. Jenkins [1975] R.T.R. 25; R. v. Evans [1974] Crim. L.R. 315.

Scott v. Baker [1969] 1 Q.B. 659; [1968] 2 All E.R. 993.

Road Safety Act 1967 sec. 2(1): Road Traffic Act 1972 sec. 8(i).

Pinner v. Everett [1969] 3 All E.R. 257.

No power is given in the Road Safety Act. A person in charge may of course be Hable to prosecution under the corresponding impairment offence and to the requirements of laboratory tests for that purpose.

R. v. Masters [1972] R.T.R. 492.

[1972] R.T.R. 315.

See Commentary to Taylor v. Houston [1972] Crim. L.R. 253.

Taylor v. Houston 1971 S.L.T. 39.

Smith v. Fyfe 1971 S.L.T. 89.

Perhaps it is anomalous that so much reliance is in practice placed upon the smell of drink when in fact alcohol is odourless. The familiar smell is caused by congénere and may persist after all alcohol has been eliminated from the body. Cf. Ward Smith H. : Drinking and Driving (1960) Criminal Law Quarterly 3, 65 at p. 80.

Cf. the case of Brewer v. Metropolitan Police Commissioner [1969] 1 W.L.R. 267; [1969] 1 All E.R. 513 (inhalation of trichlorethylene fumes). Lawyers tend to be rather cautious about allegations of ingestión of alcohol by inhalation for the reasons set out by Walls & Brownlie cit. supra. note 32 at p. 21. In the unreported case of Robertson, Cupar Sheriff Court, it was alleged that a barrel of beer had ex-ploded producing an involuntary intake of alcohol: Scottish Daily Express, 4th February 1970.

[1971] 1 W.L.R. 647; [1971] R.T.R. 153.

1969 S.L.T. 297.

1971 S.L.T. (Notes) 29.

To indulge it may of course amount to attempt to pervert the course of justice: R. v. Britton [1973] R.T.R. 502.

The laced drinks cases are: Shippam [1971] Crim L.R. 434; Pugsley v. Hunter [1973] R.T.R. 284; Alexander v. Latter [1972] R.T.R. 441 (diabetic Iager twice as strong as ordinary lager); Owens v. Imes [1972] 11 C.L. 378 (very Iarge brandy instead of small whisky); R. v. Messom [1973] R.T.R. 140 (treble brandy and ginger ale instead of small whisky and ginger ale); R. v. England [1974] 3 C.L. 30 (beer laced with vodka); in R. v. Newton [1974] R.T.R. 451 the mere fact that drinks had been laced was insufficient as Special reasons. There is a heavy responsibility on a drinking driver at a party to watch his glass—Adams v. Bradley [1975] Crim L.R. 168.

For this and related procedure reference may be made to the following practitioners' literature:—

Barnett Craigan H. : Drunken Driver Cases—Evidential Problems 1972 New Law Journal 122, 245.

Barnett Craigan H. : Blood & Urine Alcohol Test Procedures 1970 New Law Journal 120, 949.

Card P. J. : Breath Tests, Driving Suspicion & Requirement 1972 New Law Journal 122, 946.

Gordon G. H. : The Breathalyser in Scotland [1974] Crim L.R. 165 and 209.

Halnan P. J. : Road Safety Act Cases Review I 1970 Solicitors Journal, 114, 62.

Halnan P. J. : Road Safety Act Case Review I 1970 Solicitors Journal, 114, 81.

Kinnis W. : Breath Test Technicalities 1975 Journal of the Law Society of Scotland 20, 38.

Newark M. Samuels A. : A Disastrously Complicated Offence—Drunken Driving—Road Safety Act 1967—1970 Medicine Science and the Law 10, 59 and 160.

Seago P. : Driving to Drink [1970] Crim L.R. 683.

Seago P. : The Breathalyser Reblown [1973] Crim L.R. 153.

Prentice D. D. : Drunken Driving in Current Legal Problems. Stevens & Sors. London, 1970, Vol. 23, 98.

Two previous papers in this Journal are of relevant interest: Anderson P. H. Trafflc & Alcohol 1950 Medico-Legal Journal 18, 98.

Barclay I. M. et al. Blood & Urine Tests in cases of Driving under the Influence: 1951 Medico-Legal Journal 19, 98.

For a description of the Alcotest R 80 see Walls & Brownlie cit. supra note 32 at p. 78–79; and see also the Description and Instructions for Use issued by Draegar Normalair Ltd. of Blyth, Northumberland.

Day M. Muir G. G. Watling J. (1968) Nature 219, 1051. See also the reply of Wright B. M. (1968) Nature 220, 206; and (1969) Law Society Gazette 66. 648. See also Robinson Ann E. Camps F. E. : Scientific Problems associated with the Road Safety Act (1970) 10 Medicine Science and Law 69 at p. 71. In Scotland Lanarkshire pólice have attempted rescarch into the accuracy with which the Alcotest can be read under operational conditions and have revealcd further Problems.

For a comprehensive treatment of American law and practice see Erwin R. E. : Defence of Drunk Driving Cases, Matthew Bender, New York, 1974. In Northern Ireland the Ethnograph device gives an accurate breath reading. If blood alcohol level exceeds 125 mg./100 ml. there is an irrebuttable presumption of incapacity to drive: See Miers, D. R.—Drinking and Driving in Northern Ireland (1970) New Law Journal 120, 737.

Sayer v. Johnson [1970] R.T.R. 286; Gill v. Forster [1972] Crim L.R. 45.

Hoyle v. Walsh [1969] 2 Q.B. 13.

Darnell v. Portal [1972] R.T.R. 483.

Director of Public Prosecutions v. Carey [1970] R.T.R. 14.

Attorney General's Reference No. 2 of 1974: [1975] R.T.R. 142; Watkinson v. Barley [1975] R.T.R. 136.

Brennan v. Farrell [1969] Crim L.P. 494; 1969 J. C. 45; (1971) 35 Journal of Criminal Law 56.

1969 J. C. 45 at p. 52.

1971 S.L.T. 40; [1972] Crim L.R. 250.

Rendell v. Hooper [1970] R.T.R. 252; R. v. Holah [1973] R.T.R. 74.

R. v. Parsons [1972] R.T.R. 425 CA. Although a leaking tube might well give rise to a colour change it is hard to understand what could have corroded the metal gauze in this case, producing green corrosión at either end. Further scientific investi-gation is called for.

Road Trafflc Act 1972 see. 9(i).

By the phrase “at the time he provides the speeimen” in Road Trafflc Act 1972 see. 6(i). Ferriby v. Sharman [1971] R.T.R. 163.

Cf. Denney R. C. : The Truth about Breath Tests, Nelson, 1970 at p. 59.

See note 28 supra. The present urine equivalent set out in see. 12(4) of the 1972 Act involves conversión problems because though there is an equivalent there is no comparative scale expressed or implied.

Road Trafflc Act 1972 see. 9(5).

The order of preference only becomes of importance in refusal cases: R. v. Moore [1970] R.T.R. 486 D.C.

R. v. Hyams [1973] R.T.R. 68 CA.

As described in the now discredited Government pamphlet: The New Law of Drinking and Driving—Facts you Should Know.

Rushton v. Higgins [1972] Crim L.R. 440. Cf. Not Pygmalion Likely 1972 Journal of Forensic Science Society 12, 435.

The procedure is set out in The Practical Police Surgeon Ed. Cooke et al., Sweet & Maxwell, London, 1969 at Chapter 11.

Road Trafflc Act 1972 see. 10(5) and (6).

Cf. the case of McNeaney in which a substituted sample was found not to belong to the driver's blood group—Daily Express, February 18th, 1975; the case of Harlow where a policeman was found to have baked the driver's sample in an oven— Scotsman October 31st. 1974. the case of the driver who “stole” his own blood sample from the pólice—Sunday Express August 9th, 1970, Scotsman December 6th, 1970; and R. v. Anderson [1972] R.T.R. 113 where the accused destroyed his specimen on the assurance that there would be no prosecution.

Robinson Ann E. —Alcohol and the Drinking Driver's Blood Sample: Guardian Gazette (1974) 71, 96.

Rudram D. A. : The Incidence of Clotted Blood Samples in Road Safcty Act Cases: 1974 Journal of the Forensic Science Society 14, 19. Cf. Robinson Ann E. Camps F. E. : Scientific Problems Associated with the Road Safety Act (1970) Medicine Science and Law, 10, 69.

But some forces do; and many distribute the Royal Institute of Chemistry pam-phlet—Road Traffic Act 1972: Alcohol Content of Blood and Urine. which con-tains brief notes for guidance and laboratory addresses. Cf. Doctorine v. Watt [1970] R.T.R. 305.

Brown G. A. Neylan D. Reynolds W. J. Smalldon K. W. : The Stability of Ethanol in Stored Blood Pt. I: Important Variables and Tnterpretation of Results: Analytica Chimica. Acta 66 (1973) 271; and Smalldon K. W. Brown G. A. : The Stability of Ethanol in Stored Blood Pt. II: The Mechanism of Ethanol Oxidation: Analytica Chimica Acta 66 (1973) 285.

Supplementary Notes on Sampling Procedure distributed with Alcohol Drugs & Driving: A Supplement to the Drinking Driver, B.M.A., London, 1974.

For a discussion of the accuracy of analytical results see Walls and Brownlie cit. supra. note 32 at pp. 89–98. The use of automated blood analysis in Britain has now begun: Walls H. J. : Ten Years of Forensic Science [1974] Crim L.R. 504 at p. 511. Automation is bound to present Special Problems of proof for lawyers. You cannot cross-examine a machine.

Road Traffic Act 1972 sec. 10(i).

Ritchie v. Pirie 1972 S.L.T. 2 per Ld. Wheatley J. C. at p. 7; cf. now R. v. Coomar-aswamy The Times 4th November, 1975.

Road Traffic Act 1972 sec. 10(i) and 10(iii).

Road Traffic Act 1972 sec. 10(3). What happens when the certificate is unserved but the analyst appears in response to a request is a little uncertain. The Interpretation of section 10(4) is not altogether clear.

Herron v. Whitehill 1969 S.L.T. 238.

But see: Ross H. Laurence: —Law Science and Accidente: The British Road Safety Act of 1967: 1973 Journal of Legal Studies 2, 1; and Ross H. Laurence: The British Law and Drinking and Driving: (1974) American Bar Association Journal 60, 694.

Transport & Road Research 1973, H.M.S.O., London at p. 34.

Road Accidents Great Britain 1973, H.M.S.O. London at p. xiv.

Road Accidents Great Britain 1973 loc. cit.

Committee of Inquiry into Drinking and Driving under the Chairmanship of Blennerhasset F. A. Mr. Q.C. appointed 13th September, 1974.

Road Traffic Act 1972 sec. 12(i).

See note 30 supra.

Road Traffic Act 1972 sec. 159.

Lord Parker C. J. commenting during the hearing of R. v. Durrant [1970] R.T.R. 420 that “the Road Safety Act is full of loopholes”. For an appraisal of those connected with the Alcotest see Denney R. C. —The Truth about the Breath Test, Nelson, London, 1970.

See notes 46–49 supra. To indulge in drink after being stopped by the pólice or after an aeeident might amount to an attempt to defeat the course of justice: R. v. Britton [1973] R.T.R. 502.

This Suggestion was made as long ago as November 1969 in the Law Society's Memorandum on the Road Safety Act 1967.

Two disincentives to co-operation should be removed. The first is that the co-operative driver in England (but not in Scotland) has to pay the doctor's fee for the tests. and the other that so long as Courts tend to relate disqualification roughly to blood-alcohol levéis the penalty for non-co-operation (when the blood-alcohol level Is unknown) is likely to be less than for co-operation (when the blood-alcohol level may be revealed to be high).