Scotland Bill Sections on Speeding and Drink Driving

I was reading some comments by Lord Forsyth in relation to the Scotland Bill and the new powers sought in relation to speeding legislation and drink driving legislation in Scotland. For the first time, I think in my life, I had to agree with something he said:-

“The Highway Code is complicated enough and the rules for driving motor cars are complicated enough without having different rules for different parts of the United Kingdom so I think this is just plain silly,”Scotland Bill in relation to Speed Limits and Drink Driving

He also is reported to have said “I cannot for the life of me see why we need to have different speed limits or different rules relating to drink driving between Scotland and England.

Personally I do think there is good cause to consider reform of speeding laws and limits ie Limits could be made variable and then changed at night to increase speed limits on Motorways. Drink drive limits could be reduced to hammer home the idea that there is no “Two drink limit” in the UK but do we need to go our own way on such legislation. Surely these things can be debated in Westminster and further scrutinised by Committee and the Lords before being imposed on us.

My own concern is that our own wee Parliament likes to experiment with us by trying out new things here before anywhere else in the UK such as the Smoking Ban (All for that one!) and increasing the price of alcohol. It is almost as if they feel that the Scots are a great test bed for any new ideas. I thought we had got over that when Margaret Thatcher tried the Poll Tax out on us but Mr Salmond and his co horts seem determined to keep up the experimentation. I can’t blame the SNP however as when Labour were in power you never quite knew what the next piece of knee jerk legislation was coming from.

Lord Forsyth reckons the Bill will complicate matters but I thought I would let you see what is in the Bill at present and you can make up your own mind.

section 20 Power to prescribe drink-driving limits
(1) The Road Traffic Act 1988 is amended as follows.
(2) Section 8 (choice of specimens of breath) is amended as follows.
(3) In subsection (3), for “The Secretary of State may by regulations” substitute
“Regulations may”.
(4) After subsection (3) insert—
“(4) Regulations under subsection (3) may be made—
(a) by the Secretary of State, in relation to cases where the
suspected offence is an offence committed in England and
Wales;
(b) by the Scottish Ministers, in relation to cases where the
suspected offence is an offence committed in Scotland.”
(5) Section 11 (interpretation of sections 3A to 10) is amended as follows.
(6) In the definition of “the prescribed limit” in subsection (2), omit “made by the
Secretary of State”.
(7) After subsection (2) insert—
“(2ZA) Regulations under subsection (2) may be made—
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(a) by the Secretary of State, in relation to driving or attempting to
drive, or being in charge of a vehicle, in England and Wales;
(b) by the Scottish Ministers, in relation to driving or attempting to
drive, or being in charge of a vehicle, in Scotland.”
(8) Section 195 (provisions as to regulations) is amended as follows.
(9) After subsection (2) insert—
“(2A) Before making any regulations under this Act the Scottish Ministers
must consult with such representative organisations as they think fit.”
(10) After subsection (4) insert—
“(4A) Regulations made by the Scottish Ministers under section 8(3) or 11(2)
are subject to the affirmative procedure.”
21 Speed limits
(1) The Road Traffic Regulation Act 1984 is amended as follows.
(2) Section 17 (traffic regulation on special roads) is amended as follows.
(3) In subsection (2) for “The Secretary of State may make regulations” substitute
“Regulations may make provision”.
(4) After subsection (3) insert—
“(3ZA) The power to make provision of the following kinds by regulations
under subsection (2) is exercisable by the Scottish Ministers—
(a) provision with respect to a particular special road in Scotland;
(b) provision for regulating the speed of vehicles on special roads
in Scotland.
(3ZB) The power to make provision of any other kind by regulations under
subsection (2) is exercisable by the Secretary of State.
(3ZC) In relation to special roads in Scotland that power of the Secretary of
State is exercisable only after consultation with the Scottish Ministers.”
(5) Section 64 (general provision as to traffic signs) is amended as follows.
(6) After subsection (2) insert—
“(2A) The functions under this section that are exercisable by the Scottish
Ministers instead of the Secretary of State include the function of
making regulations under subsection (1)(a) specifying signs for a
Scottish national speed limit.
(2B) The function of making such regulations is exercisable only with the
agreement of the Secretary of State.
(2C) “Scottish national speed limit” means any of these—
(a) a speed limit that, by virtue of regulations under section 17(2)
made by the Scottish Ministers, is to be observed—
(i) on all special roads,
(ii) on all special roads provided for the use of particular
classes of traffic,
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(iii) on all special roads other than special roads of such
description as may be specified in the regulations, or
(iv) as mentioned in sub-paragraph (i), (ii) or (iii) except for
such lengths of special road as may be specified in the
regulations;
(b) a speed limit that, by virtue of an order under section 88 made
by the Scottish Ministers, is to be observed on all roads, on all
roads of any class specified in the order or on all roads other
than roads of any class so specified.”
(7) After subsection (6) insert—
“(7) Regulations made by the Scottish Ministers under subsection (1)(a) are
subject to the negative procedure.
(8) Before making any regulations under subsection (1)(a) the Scottish
Ministers must consult with such representative organisations as they
think fit.”
(8) Section 88 (temporary speed limits with power to continue indefinitely) is
amended as follows.
(9) For “the Secretary of State” in each place substitute “the national authority”.
(10) In subsection (1)—
(a) for “he” substitute “the authority”;
(b) for “his” substitute “the”.
(11) In subsection (4) omit the words from “made by statutory instrument” to the
end.
(12) After subsection (7) insert—
“(7A) The national authority in this section—
(a) in relation to roads in England and Wales, is the Secretary of
State;
(b) in relation to roads in Scotland, is the Scottish Ministers.”
(13) In subsection (8) after “subsection (1)(b)” insert “by the Secretary of State”.
(14) After subsection (8) insert—
“(9) The power of the Scottish Ministers to make an order under subsection
(1) is not to be exercisable by Scottish statutory instrument.
(10) The first order to be made under subsection (1)(b) by the Scottish
Ministers shall not be made until a draft of the order has been laid
before the Scottish Parliament and approved by it.
(11) The power of the Secretary of State to make an order under subsection
(4) is exercisable by statutory instrument which shall be subject to
annulment in pursuance of a resolution of either House of Parliament.
(12) An order made by the Scottish Ministers under subsection (4) is subject
to the negative procedure.”
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22 Speed limits: supplementary
(1) The Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc)
Order 1999 (S.I. 1999/1750) is amended as follows.
(2) In Schedule 3 (functions exercisable after consultation), in the entry for the
Road Traffic Regulation Act 1984—
(a) omit paragraph (a) (section 17(2));
(b) in paragraph (f), omit “and 88(1) and (4)”.
(3) In the Schedule to the Scotland Act 1998 (Transfer of Functions to the Scottish
Ministers etc) Order 2000 (S.I. 2000/1563) omit the entry for the Road Traffic
Regulation Act 1984 (section 88(1)(a) and (4)).
(4) The transfer by virtue of section 21 of a function exercisable by the Secretary of
State to the Scottish Ministers (a “transferred function”) does not affect the
validity of anything done (or which has effect as if done) by or in relation to the
Secretary of State before the commencement of that section.
(5) Anything (including legal proceedings) which, at that commencement, is in the
process of being done by or in relation to the Secretary of State may, so far as it
relates to a transferred function, be continued by or in relation to the Scottish
Ministers.
(6) Anything done (or which has effect as if done) by or in relation to the Secretary
of State for the purposes of or in connection with a transferred function has
effect, if it is in force at that commencement, as if done by or in relation to the
Scottish Ministers, so far as that is required for continuing its effect.
(7) But an instrument containing regulations or an order made by the Secretary of
State is not to be treated as if made by the Scottish Ministers for the purposes
of section 64(2C)(a) or (b) of the Road Traffic Regulation Act 198

70% of Drink Drivers are Morning After Offenders!

It’s Never Too Late To Call A Road Traffic Lawyer

A recent article by Neil Poornan in the Scottish Press indicated that 70% of drink drivers apprehended by the police in the first 3 weeks of a recent drink drive campaign in Scotland were arrested between 6:00am and 10:00am

Chief Superintendent Kate Thomson said: “During the first three weeks of this campaign, over 100 offenders detected for drink driving were under twice the legal limit, and over 70 offences were detected between 0600hrs and 1000hrs, classed as the morning after for offenders.” She reiterated the view that ALL drink driving is a criminal offence and it cannot be excused simply because you failed to understand that you would still be over the drink drive limit the day after consuming alcohol.

This demonstrates very clearly that there is still a message that needs to get through to Scottish drivers. The risk of drink driving the day following  a drinking session are very real and significant and they carry the same mandatory ban for at least 12 months.

FREE drink at Christmas Parties!

Drink Driver's May Have Their Cars Impounded

Over 1,000 pubs and bars in Scotland will provide drivers who choose not to drink alcohol with ‘buy one, get one free’ offers on Coca-Cola and Diet Coke until December 31.

The scheme is part of Coca-Cola’s Designated Drivers Campaign. It is great to see a company like Coca-Cola involved in a scheme that treats drivers in a responsible way.  The big alcoholic drink manufacturers tend to have advertising schemes and incentives to lower drink driving but we need more to be done

We now all  realise that drink driving is simply unacceptable and most of us take a responsible attitude to the pressures from the “one for the road” brigade. At a time where we see the Scottish Government trying to make an impact and reduce deaths  from drink driving it is good to see big commercial companies like Coca-Cola getting behind the message.

The present scheme is supported for the first time by the Scottish Government and Road Safety Scotland as part of their festive drink drive campaign which encourages Scots to consider the tougher consequences they face if they drink drive this Christmas. As well as losing their licence with an automatic 12-month ban, those who do so face a criminal record, a fine of up to £5,000 and forfeiture of their car.

It was reported that Transport Minister Keith Brown said:

“Last year over 7,000 people were caught driving under the influence of drink or drugs in Scotland. Those who do choose to get behind the wheel after drinking face even tougher consequences this festive period – as well as losing their licence, being banned from driving and facing a fine and criminal record, they can also lose their car. Coca-Cola’s Designated Driver campaign encourages Scots to give their friends and family a safe lift home, and we’re supporting the scheme to say don’t risk it this Christmas.”

Drink driving cases are tough to defend. There are technical issues involved and drivers are entitled to the full force of a thorough defence however it is fair to say that most cases that we are involved in require a damage limitation approach as opposed to a full out defence and trial. Social mores have changed so much over the past 20 years that lawyers are reluctant to promote the fact that they defend such cases but we take the view that EVERYONE is entitled to the presumption of innocence and the State has to be thoroughly tested if a matter is put to trial. It is not for us to make moral judgements that in any way inhibit our ability to do the best for our clients.  This is the type of thing I am used to saying at a dinner party or social event where I am berated for the millionth time for defending people charged with rape or murder but it is interesting that at this time of year the alleged murders,rapists etc are aligned in the public’s psyche with the drink driver.

Forfeit Your Car If More than 3 times Over the Limit

Don't Drink And Drive This Xmas or ANYTIME

A new drink drive initiative is planned for this year in Scotland. First-time drink-drivers who provide a sample for analysis which is three times the legal limit or more, and those who refuse a breath test, could have their vehicles confiscated and sold off, after conviction.
That would be in addition to receiving a criminal record, a fine and a 12-month driving ban.

The plans come after a forfeiture scheme introduced in 2009 to deal with repeat offenders. Extended in summer 2010 to include drug-drivers. A total of 155 vehicles forfeited, with a further 18 vehicles seized pending court decisions.

According to the latest figures, it is estimated that just over one in seven deaths on Scottish roads involve drivers who are over the legal alcohol limit..Even one death is unacceptable but we have to be realistic in balancing the rights of the accused and the
It has to be said that this type of order sends out a very strong message in Scotland that drink driving will not be tolerated. Clearly that is a good message and one that we all support but I have concerns about the implementation of such a scheme where a car may be a family owned vehicle, a company vehicle or even a vehicle that holds a massive monetary value (Disproportionate punishments would occur, fundamentally a breach of human rights) We see that there would be real and significant difficulties implementing this scheme in a fair and proportionate manner throughout Scotland and therefore we should tread carefully before warmly welcoming this new method of dealing with first offenders

The joint operation between the Association of Chief Police Officers in Scotland (Acpos), other law enforcement partners and the Scottish Government will see more police road patrols over the festive period. All eight police forces will take part in the four-week campaign.

Drink Driver- Electronic tags

The Glasgow Herald ran a story today regarding the electronic tagging of alcohol related offences.  Although the article relates to violent crime I wonder if the Scottish Government will consider using such devices for drink drivers. Does this mean that drink drivers will have the added stigma of wearing an ankle device that tells the world they are convicts?

The Glasgow Herald article stated..”Offenders with alcohol-related problems in the west of Scotland will be fitted with electronic tags that can detect whether they have broken a ban on drinking while serving a community sentence.

The “sobriety bracelets”, which are usually tagged to the ankle, record the wearer’s alcohol intake by measuring air and perspiration emissions from the skin every 30 minutes.

They detect blood alcohol levels as low as 0.02% and can tell when the alcohol was consumed before electronically transmitting that information to a base monitoring station.

The equipment is to be introduced to the west of Scotland if funding is secured from the Scottish Government and will be used as part of a pilot scheme for violent offenders receiving community sentences to be undertaken by Strathclyde Police’s Violence Reduction Unit (VRU).

A study of prisoners by Strathclyde Police in 2007 found approximately two-thirds of those arrested at the scene of a crime were under the influence of alcohol, with the VRU spending the past year exploring ways to restrict alcohol consumption by offenders.

As part of the study, 200 offenders would be placed on a period of complete sobriety for 120 days, with an additional month dedicated to a “stepwise” programme to introduce moderate alcohol consumption, if the offender requests it.

The Secure Continuous Remote Alcohol Monitor, or Scram, hit the headlines when Freaky Friday star Lohan was fitted with one last year after she failed to show up for a probation hearing relating to a 2007 drink-driving case because she was in France.

American courts have ordered Scram devices on thousands of defendants released on bond and awaiting trial for alcohol-related offences, those on probation, and under-age drinkers.

Criminal justice professionals in the US report high compliance rates, at least while these people remain in the court system, and have claimed it has an impact on the size of the prison population.

However, many lawyers have argued that, despite widespread use, scientific information is lacking on the device’s reliability and believe false positive readings are also a risk.

Some have claimed baked goods such as sourdough English muffins can cause the body to produce its own alcohol, while online bloggers recommend “scamming the Scram” by placing luncheon meat, tape or paper between the ankle and the sensor or plunging the leg into an ice-cold bath to prevent perspiration.

Alcohol Monitoring Systems Inc, which manufactures the device, insists such ploys do not work. A spokeswoman has described the devices as “like a breathalyser for your ankle”.

Details of the plans for Scotland emerged this week during a meeting of Strathclyde’s governing body, where Chief Constable Steve House said the force had applied for around £150,000 from the Scottish Government for the technology to run the scheme, adding it was “an exciting development” but without ministerial monies they would not be purchased.

Mike Nellis is emeritus professor of criminal and community justice at Strathclyde University and has a particular interest in electronic tagging devices. He said the authorities in the Netherlands and Sweden had considered similar schemes but this was the first he was aware of in Europe.

Mr Nellis said: “I welcome the fact this experiment is going to take place even though I don’t think the science is at all certain. It’s an extremely useful tool but not foolproof.

“There’s bound to be court cases in Scotland where any lawyer worth his salt will challenge the science. But the link between alcohol and violence is cast iron and we’ve got to be imaginative and adventurous.

“Electronic monitoring is only part of a strategy, but in this case I’ve got to question expectations of keeping hardened drinkers away from alcohol for 120 days.”

Detective Chief Superintendent John Carnochan, co-director of the VRU, said: “Alcohol-related violence is a huge problem for Scotland and the VRU are fully supportive of all measures to tackle it.”

Drink Drive Law Reform In Scotland

Police Stations Procedures for Requests for Blood or Urine Samples in Drink Driving Cases

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 as evidence against a motorist depends upon the procedures being followed correctly. We always seek the 4:8:1 form that should be a record of the procedures followed and often therefore acts as the cornerstone of our cross examination in such cases. We will also seek sight of the EC/IR 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;

• 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; We have heard countless tales of drivers claiming that the police officer told them not to bother as it would serve no real benefit to them this is rubbish, you should, where the opportunity arises ask for a blood sample to be provided. If there are medical reason why you cannot give blood then make sure that these reasons are stated and recorded.
• The 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.