Thursday , 12 September 2019
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Statutory Option Removed, Legal ‘Loophole’ Closed

New legislation removes statutory option for drink drivers who are just above the legal drink driving limit

  • As of 10th April 2015, motorists can no longer rely on the option of replacing an evidential breath specimen with a blood or urine specimen if their breath test shows they do not exceed the legal limit by a large amount
  • Replacing a breath specimen with a blood or urine specimen was known as the statutory option, this option has now been repealed and can no longer be used by suspected drink drivers

Blood and Urine Sample

The statutory option allowed suspected drink drivers the choice of having an evidential breath specimen replaced with an alternative specimen of blood or urine for analysis if the breath sample they provided showed that they had between 40 and 50 microgrammes of alcohol per 100ml of breath in their system. If this was the case they could then choose to provide an alternative sample for analysis.

The statutory option was introduced at approximately the same time as evidential breath testing in the 1980’s. It was introduced, in order to alleviate any doubts as to the accuracy of evidential breath testing machines.

The test of time has proved that evidential breath testing machines (EBT’s) are indeed both accurate and reliable as a means of proving the amount of alcohol in a persons system and the statutory option has now been deemed redundant.

Legal ‘Loophole’

Many people see the statutory option as a legal ‘loophole‘. This is due to the fact that motorists who opt to use the statutory option often have to wait for a medical practitioner or healthcare professional to be called to take a blood sample, in many cases the time elapsed (often an hour or more) before a blood sample could be taken allowed the alcohol level in a persons body to decrease and by the time a blood specimen was taken, alcohol levels had fallen to within legal limits. This often allowed drink drivers to escape prosecution.

There is already a degree of tolerance concerning evidential breath testing results. Although the maximum legal alcohol limit is 35 microgrammes of alcohol in 100 millilitres of breath, the police only charge motorists who provide breath test readings in excess of 40 microgrammes of alcohol per 100 millilitres of breath (the prosecution limit). This ensures that motorists who are charged based on evidential breath testing evidence, do indeed have a level of alcohol in their system that exceeds the legal limit.

New Legislation

Schedule 11 of the Deregulation Act 2015 omits several sections of the Road Traffic Act 1988 resulting in the statutory option of having breath specimens replaced by alternative specimens for analysis being repealed.

The Deregulation Act 2015 received Royal Assent on 26th March 2015 and Part 1 of Schedule 11 of the Deregulations Act 2015 relating to the removal of the statutory option came into force on 10th April 2015.