A Fairer and More Effective Solution

Contents

1. Introduction

The Association of British Drivers (ABD), as a body representing drivers' interests, is as eager as anyone to ensure that all road users can go about their legitimate business without their lives being put at risk by those who drive whilst impaired by alcohol.

There is no disputing that the incidence of drunken driving and the deaths so caused have fallen drastically over the past 30 years. Equally, it is clear that this improvement has not been maintained over the past five or six years, with a levelling off of "drink related" fatalities. Central to the proposed strategy for further reducing alcohol related deaths is the reduction of the permitted blood alcohol concentration (BAC) level from the current 80mg/100ml to 50mg. The ABD believes that this measure will achieve nothing but the pointless criminalisation of millions of responsible people who are not causing any danger to others. This will lead to a serious danger of public respect for the limit, and consequently the entire anti drink drive strategy, being undermined.

Publicly aired arguments against the limit reduction to date have tended to come under two basic headings:

• Most alcohol related fatalities involve drivers who exceed the current limit by a sizeable margin and who will not be in the least affected by a limit reduction which will therefore miss the most important target.
• The livelihoods of country pub owners will be seriously affected leading to economic hardship and rural unemployment.

The most powerful argument against a reduction in the BAC limit also sheds considerable light on why current policies are failing to improve the alcohol related deaths. This is the residual alcohol issue, whereby a non drink driver can still be unwittingly over the limit many hours after drinking without any detectable impairment in his driving performance. This issue is rarely mentioned in the media and its very existence is denied by implication in the term "drink driving". Section 2 looks at the sociological effects of this issue and how these are likely to be affected by a limit reduction.

The ABD has also examined the evidence presented in the Consultation Paper suggesting that a small but significant number of lives could be saved by reducing the limit to 50mg. There has been no truly large scale study on the effects of lower levels of alcohol on real driving since the 1960s, and what there has been is full of assumptions and inconsistencies. There is also little robust data either on the BAC of drivers who survive accidents but who are below 80mg or on the BAC of the driving population as a whole. Those figures that do exist suggest that there is very little if any over representation of 50-80mg drivers in the accident statistics. There is, therefore, virtually no hard evidence to support the benefits of the proposed limit reduction. This area is dealt with in Section 3.

It would therefore be quite reckless for the Government to push ahead with a BAC limit reduction which would certainly result in gross injustice for many thousands of responsible motorists and probably undermine public support for the anti drink drive message, whilst delivering, at best, highly uncertain, unproved and marginal direct road safety improvements.

Finally, Section 4 summarises the recommendations of the ABD.

2. Residual Alcohol issues

• It is a simple matter to know what one's blood alcohol level is at any given time;
• All alcohol suddenly disappears from the blood shortly after it has been consumed.

2.1 Blood alcohol levels vary with people and circumstances

• There is no reliable way to measure one's blood alcohol level, and there is huge variation in the way a given amount of alcohol works through to the blood. It depends on the weight and sex of the drinker the amount of water consumed with the alcohol, the level of hydration of the body and any soft drinks or food consumed at the same time.
• The layman can easily compare the difference between the headspinning effect of drinking a glass of wine on an empty stomach after some physical exertion on a hot day and the feeling of sobriety after three or four similar glasses over a couple of hours with a meal in winter, accompanied by water.

Reducing the limit to a point where a typical person cannot detect the effects of alcohol will deny them the opportunity to avoid driving until those effects have gone away. Despite being no danger to the public, they will unwittingly be breaking the law. To penalise them to the same extent as those who deliberately beak the law, resulting in loss of livelihood, is contrary to any civilised criminal justice system.

2.2 The time taken to remove alcohol is also variable

• Trouble is, everyone looks at the blood alcohol level when it is rising after drinking, forgetting that it has to fall again. This is where the real injustice comes in, because this can vary enormously, with relatively small quantities of alcohol staying in the system for a long time in certain circumstances. Even now, people who never drink- and drive are losing their licences and often their jobs for this reason. Often, simple precautions such as drinking some water can help get levels down fast.
• Reducing the limit to 50mg would extend this problem to every driver in the land bar strict teetotallers, and make keeping one's licence a lottery. We suspect that almost all of the extra prosecutions from reducing the limit would come into this category.
• It is also very important to remember that the increased risks attributed to driving with any given level of alcohol in the system are averages across the population. So, whilst some may be adversely affected and feel themselves unfit to drive below the limit, others will be unable to detect that they are slightly over the limit and will be much less affected, if at all. Arguments that the limit should be lowered because some drivers are affected below it are therefore more a reflection of the inadequacy of a fixed scientific black/white limit to do a just, fair and adequate job.
• Government could do much to make people aware of the residual alcohol issue. But all we have is constant publicity telling people not to drink and drive, which is all very well, but doesn't help people at all if they don't drink and drive but are still over the limit the next day, leaving them open to either unjust prosecution or the possibility that they are unwittingly putting themselves and others at risk, depending on the level of the residual alcohol.
• The biggest time for drink drive accidents is summer, not Christmas. This is the time when people are dehydrated and the same drink has much more effect. The government should warn people of this, and give advice about factors which can extend the'life' of alcohol in the blood.

2.3 There is evidence that falling alcohol levels are less dangerous than rising ones

• "Loosening the Grip", by Kinney & Leaton (ISBN No: 0-8016-2769-9), is a reference book used by practitioners dealing with alcohol problems. On page 47 it states that: "A drinker is more out of commission when the blood alcohol level is climbing than when it is falling ... As the blood alcohol level drops in the elimination phase, the individual, when similarly tested, will be able to function better with the same blood alcohol content."
• This has the worrying implication that a law that is intended to deal with drink drivers who are creating a given hazard at a certain alcohol level is being applied against those who are unaware their blood still contains alcohol and who are anyway not causing the same level of hazard — if any at all — as the target group. Their treatment is thus doubly unjust.

2.4 The potential negative effect on the "hard-core" drink drivers' attitudes

• The people who are causing most of the accidents are the hard core of drink drivers — the people who will drink nine or ten pints and then drive home from the pub. They, despite all the publicity, do not believe they are causing a danger. They are the people who need to be got at — and quite a lot of them have reluctantly changed their ways, either by being caught or seeing friends get caught. However, once they see other friends who do not drink and drive at all being banned for a year for having 55mg in their blood the next day, they will simply have the attitude which says: "Why go to the trouble of getting a taxi tonight when I will probably be caught on my way to work tomorrow."
• Some people are saying this even with the existing limit, and so it may already have a negative effect on the behaviour of the "hard-core" of heavy drinkers. This issue is therefore likely to be a significant factor in the "bottoming out" of drink related accidents and fatalities. Reducing the limit will only extend this problem to ordinary social drinkers, causing far more people to believe that they may as well be hung for a sheep as a lamb, and might actually increase incidences of driving with higher alcohol concentrations.
• This problem is compounded by the lack of progression in the penalty system for those caught over the BAC limit. There are three types of penalty, a fine, a driving ban and the presence of a DD conviction on one's driving licence for ten years. The fines do show some progression with the circumstances and seriousness of the offence, but the imposition of a minimum one year (three year for a second offence) driving ban means in practice that there is no real difference in penalties between the hard-core drink driver and the non drink driver unwittingly caught a few points over the limit many hours after consuming alcohol. Typically, those who are two and a half times over the limit seem to get a 15-18 month ban instead of the minimum 12 month, but, if one's job depends on a licence this difference is pretty irrelevant, especially as all DD convictions are viewed identically by insurance companies and employers once the licence is returned.
• The minimum penalty was introduced in 1968 into an environment where drink driving was much more prevalent than it is today. It was therefore necessary to ensure that the courts treated drunk drivers with appropriate seriousness. Today, however, it is holding back progress on drink driving by, forcing the courts to impose unjust penalties on those with residual alcohol whilst really serious deliberate drunk drivers are, one could argue, not treated severely, enough.

2.5 Public acceptance of the new limit

2.6 Police Powers

3. A 50mg Limit would make a very questionable contribution to safety

This showed that the chances of being involved in an accident only starts to climb significantly when blood alcohol levels go over 100mg. The vast majority of drink drive fatalities involve drivers with more than double the current limit, at which point the research showed a 21 fold increase in the chances of having a serious accident. The risk at 80mg was some 48% higher than that at 50mg, and some 80% higher than for a zero BAC.

These figures are very different from those quoted in the consultation paper, which are attributed to Borkenstein, saying that a driver in the 50-80 mg range is 2-2.5 times more likely to be involved in a non fatal accident and 6 times more likely to be involved in a fatal accident. The ABD has therefore taken a hard look at the reliability of these figures and has considerable comment to make on the robustness of the forecast that reducing the limit to 50mg will save 50 lives per annum

3.1 The accuracy of the measures of risk

The big flaw in the Grand Rapids, and other similar studies, is the comparison between the drivers involved in the accidents and the control group. This is a crucial point. It is surely believable that drivers who are cautious and safe in their outlook, and therefore less Likely to have an accident, are also less likely to drink and drive. If this is so, then drivers with alcohol will automatically he over represented in the accident statistics simply because they come from sub groups who are more likely to have an accident anyway. The researchers were able to correct their figures for many factors such as age, and possibly socio-economic group and drinking habits, but there are huge differences in accident frequency between individuals who are indistinguishable in these categories due largely , to attitude and personality. At higher concentrations of alcohol, of course, the increased risk is so large that these factors will be overcome, but at low levels the probabilities we are dealing with are so small and there are so many other factors involved that it is very difficult to isolate the blood alcohol variable with any degree of confidence.

• The figures quoted in the introduction to the Consultation document for increased risks are, of course, averages. In the introduction, it is stated that the increased risk for young drivers and inexperienced drinkers may be 5 times higher in the 50-80mg range than when such drivers are sober compared with the 2-2.5 times quoted as an average. This, of course, must mean that the increased risk for older drivers and more experienced drinkers is much less than 2-2.5 times. Perhaps there are other sub groups in the population who show disproportionately high risk increases, and perhaps, therefore, many drivers show no increased risk at all at these levels.
• These points also lead to the question as to whether all drivers act in the same way when they have consumed alcohol. There are some who believe they, are "king of the road" and so drive more recklessly at exactly the time they should be taking more care. Others realise their reactions may be slightly slower and so take extra care. This has been cited as an explanation for the "Borkenstein Dip" where drivers with BACs between 10 and 40 mg/100ml were actually shown to be underrepresented in the statistics.

3.2 The absolute level of risk

This absolute level of risk must be viewed in the context of other risks which may be much larger, such as driving whilst tired, ill, bereaved, angry or stressed. None of these are currently illegal and may well involve much higher risks than driving with 50-80mg of alcohol, if it were possible to isolate these variables effectively. It may also be that the perceived increased risk from alcohol is linked to one or more of these variables anyway. There is great danger in risking the level of public support for anti drink drive measures simply to pursue a relatively minor risk because it happens to be linked to something that is easy to measure, whilst ignoring much higher risks.

3.3 The actual Figures for the UK

• The following table contains statistics taken from the Consultation Paper:

• What this table shows is that the proportion of killed and seriously injured drivers with between 50 and 80 mg of alcohol are broadly in line with those testing in this range in roadside tests. That is: there is little or no increased risk to drivers in this range. Now, these figures are not necessarily comparable in their methodology, but no better ones apparently exist. It is worth pointing out that around 1% tested over 80mg in the roadside tests, but that 0.8% refused to participate and were discounted. Given that a refusal is treated as a positive in a real breathalyser situation, it could be argued that these roadside tests under called the proportion of drivers with these alcohol levels. On the other hand, they may have been carried out at times when drivers were more likely to have consumed alcohol — for example at night. However, the conclusion that the consultation document contains figures which clearly contradict the main thrust of its argument is inescapable.
• Returning to the "generally accepted" risks, one figure is quoted for the whole 50-80mg/100mI range in Annex 2, but there is no doubt that risk progressively increases as a driver moves from 50mg to 80mg, although by how much is clearly arguable. On page 21 (para 42) it is stated that "the risks rise particularly sharply at around 80mg" (although the Borkenstein graph shows no such trend). What, therefore, is the sense of quoting one figure for the whole 50-80mg band? It is entirely feasible that the accidents caused by drivers in this band are heavily concentrated at this top end, just under the current limit. Many of these drivers are likely to have been over the limit when the accident happened but below by the time a measurement was taken.

3.4 Direct Measurement of Effect of Low Alcohol Levels on Driving Ability

3.5 Types of Drivers with 50-80mg

1. Those who flaunt the current 80mg limit but who, at the time of testing, just happen to be below 80mg, probably much to their surprise.
2. Those who are completely unaware they have any significant alcohol in their blood due to the residual alcohol problem.
3. Those who are drinking and driving but who are ensuring that they remain under the 80mg limit.

3.6 The level of risk posed by these drivers

• The drivers who regularly ignore the 80mg limit but who just happen to be below when tested are, by, definition, likely to have a greater chance of being in the 70-80mg range where the risk posed is highest. Many of them will be tested after accidents and will have been over 80mg at the time of the accident but will have fallen below it when either breathalysed at the roadside or later at the police station.
• The drinker who seeks simply to obey the law, however, is much more likely to be at the lower end of the 50-80mg band, and is thus going to be posing a much lower risk than the other group. This is because, in the absence of any means of measuring blood alcohol accurately no driver can deliberately get close to the limit without running the risk of exceeding it. The "drinking up to the limit" issue is a myth, because it isn't possible. We therefore have a clear split between those who are behaving responsibly and ensure they are well below the limit, who will not be driving with 70-80mg, and those who are prepared to risk being over it but who by sheer luck are under at the time of the accident. It is these latter drivers who are likely to be over represented in the accident statistics.

So, once again, we have a situation — whereby a lowering of the limit will have a disproportionate effect on the responsible citizen and little effect on the reckless who are the ones who should be targeted by legislation.

3.7 The experience of other countries

These countries had much higher incidences of drunk driving than the UK due to a previous absence of UK levels of enforcement and publicity. The limit reductions have been accompanied by increases in both enforcement and publicity, so to claim that the limit reduction has caused these improvements is not reasonable. They are simply catching up with the social change that has already happened here, and to predict a similar percentage reduction in the UK based on a hard-core of persistent drink drivers is not valid.

4. The Proposals of the ABD

1. Retain the legal BAC limit for driving at the current level of 80mg/100ml.

2. Remove the minimum penalty of a one year driving ban to allow the courts fairly to take account of "residual alcohol" circumstances.

3. Redefinition of such offences to allow a different coding on the driving licence and earlier removal.

4. Removal or modification of the absurd "offence" of being drunk in charge of a vehicle whereby those simply sitting, or even sleeping in a parked vehicle with no intention of driving it are treated the same as drunk drivers.

5. More serious penalties to be made available to the courts for those with very high levels of alcohol.

6. No increase in police powers to breathalyse, but publicity to advise the public of the full extent of their current powers.

7. Research to be conducted into factors affecting alcohol uptake and elimination rates. Results to form part of an education campaign to help prevent people unwittingly driving with excess residual alcohol.

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