Reducing the Drink Driving Limit in Scotland Analysis of Consultation Responses

4 Ancillary Matters

4.1 The consultation document explained that drivers who have a breath sample reading over the current limit of 35 mcg and below 50 mcg of alcohol per 100 ml of breath, have a legal right to ask for the breath sample to be substituted with a sample of either blood or urine.

4.2 This right was introduced because of a concern, in the past, over the reliability of breath testing devices and also to take account of differences between individuals in the ratio of alcohol in breath to that in blood; this right is commonly known as the 'statutory option'.

4.3 If the proposals go ahead, the availability of the statutory option will remain and the only change will be a consequential, technical change to reflect the new lower breath limit (22 mcg of alcohol in every 100 ml of breath).

4.4 The consultation document also explained that there are no plans to change the ratios that establish in law the relationships between the alcohol concentrations in breath and in blood, or between the alcohol concentrations in blood and in urine.

4.5 Respondents were asked whether they had any comments on these ancillary matters.

Question 4: Do you have any comments to make on the ancillary matters related to the Scottish Government's proposal to reduce the drink drive limits?

4.6 Around half of all respondents provided comments at Question 4. However, the vast majority of these dealt with issues other than the ancillary matters of the statutory option or the ratio between the drink drive limits. These comments were reassigned to Question 5 in order that they could be analysed alongside other comments on the same issues; the findings are presented in the next chapter (Chapter 5) of this report.

4.7 Only eight respondents (three safety organisations, two expert individuals and one each from the individual, health and legal groups) commented specifically on the ancillary matters of the statutory option or the ratio between the drink drive limits. These comments are summarised below.

4.8 The three safety organisations along with the health organisation agreed that the statutory option and the ratios should be retained as set out in the consultation document.

4.9 The legal organisation and individual respondent both commented on breath testing equipment.

4.10 The individual felt that there should be a trial period in which the current limits are retained until it is clear that equipment does not give a false reading above the new limit.

4.11 The legal organisation pointed out that the Road Traffic Act 1988 came into force at a time when equipment was not as accurate as it is today; they suggested that this might be a good opportunity to revisit these 'out-dated' thresholds and that this could lead to savings in police, medical examiner, laboratory and other costs.

4.12 This legal organisation also commented on the 'tolerance' threshold of 39mcg currently operated by the police force and asked whether this would be reduced or removed.

4.13 One expert individual suggested that steps should be taken to remove the statutory option as soon as possible and that when this has been achieved the ratio should change from the current 2300:1 to 2000:1.

4.14 Another expert individual commented that both the statutory option and the ratios are at present under consideration by the UK Government and suggested that, apart from the technical changes, no action should be taken until it is clear what is being proposed by the UK Government.