Possible end of blood test sparks rights debate

The legal alcohol level for driving is 35 micrograms per 100 millilitres of breath. But motorists whose breathalyser test reveals a level of between 35 and 50, rated as “moderately above” the limit, have the right to ask for a blood test as well if they are unhappy with the results of their breath test.

Historically, breath tests were used only to screen motorists to decide whether or not they needed a definitive blood or urine test.

But the Department for Transport (DfT) says that thanks to today’s “more accurate breath testing equipment”, breathalyser tests are now reliable and a blood test is no longer necessary.

The DfT now wants to remove the right to a blood test altogether. It argues some drink-drivers who demanded a blood test were simply abusing the system to try to escape conviction, knowing that by the time a doctor could be found to administer a blood test their alcohol levels may have fallen below the limit.

The proposal to remove the right to a blood test is part of a raft of measures designed to crack down on dangerous drivers put out to consultation by road safety minister Jim Fitzpatrick last November.

The consultation process on the proposals finished last month, and ministers are now considering the results before making an announcement.

But will denying motorists the right to a blood test make our roads safer? Or is it yet another infringement of our civil liberties?

The retired policeman

YOU might expected a retired senior police officer to be all for any legislation which would help to convict more drink-drivers.

Far from it. Allan Charlesworth, who retired as deputy chief constable of West Yorkshire Police in 1998 and now lives in York, says there is no doubt denying suspects the right to a blood or urine test would infringe their rights.

“The issue is one of justice,” he said. “People are innocent until proven guilty. We are relying on technology which in the past has been proven not to be as perfect as we would want it to be, and I think it is right for a suspect to be able to say ‘Well, I really want you to make sure the reading is accurate’. The way to do that is to take a sample of blood or urine and look at it in lab conditions.”

If police officers or the Government were concerned that some drink-drivers were escaping conviction because of the length of time it was taking to find a doctor to take a blood sample, it was up to them to make sure more doctors were available at police stations, Mr Charlesworth said.

“Justice is justice. I would rather err on the side of the rights of the suspect. I would rather some of the guilty go free than an innocent person be convicted.”

The lawyers

THE Government was trying to make people believe drink-drivers were abusing the system by engineering delays in testing so as to escape their criminal responsibility, said leading York criminal defence lawyer Colin Byrne, of Howard & Byrne.

But there wasn’t a shred of evidence that was so.

Most motorists arrested on suspicion of drink driving did not even know how the system worked, he said. The idea that they were manipulating it for their own benefit was nonsense. “It is the police who are controlling that system.”

Until the Government could provide statistics that prove drink-drivers were abusing the system, then the law should stay as it was.

In the absence of any statistical evidence, the only reason he could see for the Government wanting to change the law was to save money. Taking blood samples is costly, he said – in terms of police time, taking statements, sending samples off for analysis and so on.

“But you cannot undermine the law purely on the grounds of cost.” Any attempt to change the law could end up costing more, he said.

If convictions were sought on the grounds of breath tests only, without the right to request a blood or urine sample, there would be more not-guilty pleas, more legal costs, more expert witnesses required.

“That could be very, very costly.”

Robert Ward, a solicitor with Langleys in York, agreed that before any change in law, the Government would need to prove both that there had been abuse of the system and that modern breathalyser machines were accurate and reliable. Until then, the right to ask for a blood test should remain, he said.

Gary Atkinson, a formal criminal defence lawyer turned lecturer in law at York College of Law, said his understanding was that modern breath testing equipment was much more accurate than before.

But the Crown Prosecution Service was reluctant to prosecute anybody whose alcohol level was in the 36-39 range, he said: which suggested there was a “margin of error” on reliability.

Police also now had much more streamlined procedures for finding medical staff to take blood tests, so the tests could now be done quickly, he added.

Given all that, it was hard to see a need for change.

“In general, the eroding of anybody’s rights is something that we should only do very reluctantly.”

The motoring organisations

THE RAC was in favour of removing the right to ask for a blood test. Some drink-drivers have used that option to escape punishment, said spokesman John Franklin.

Removing the right to ask for a blood test would make the roads safer for everybody. “There would be fewer people taking the risk of going out drink-driving if they knew that if they get caught, they would get a penalty against them straight away.”

The AA, however, believed the right to a blood test should remain for a “transitional period” – perhaps five years.

If after that time there had been no cases where readings from modern breath-testing machines were different from the readings from blood tests, then the right to a blood test could be done away with, said spokesman Paul Watters.

And if there were cases where there were differences in readings?

“That would be quite alarming.”