The Drink- and Drug-Driving Offences and the Criminal Law Paradigm

This thesis reports on research into the offences, under the Road Traffic Act 1988 as amended, of driving, attempting to drive, or being in charge of a vehicle when unfit through drink or drugs, with excess alcohol, or (under provisions to be brought into force) with an excess of a specified drug. The research was primarily literature-based, using legal doctrinal analysis, supplemented by empirical research. The offences are examined in the contexts of four principles said to govern how the criminal law and the law of evidence are framed: the preconditions for strict liability, the presumption of innocence, the privilege against self-incrimination and the principle of legal certainty. The literature and case law are reviewed, and the drink- and drug-driving offences are found to offend all four principles. Uncertainty about the prescribed limit for driving with excess alcohol – by far the most commonly prosecuted of the offences – emerges as the most significant breach. To explore this, the scientific background to the offences is explained, and the literature on what drivers understand the limit to mean is reviewed. An original study on the point is reported, and it is concluded that the drink drive limit, while scientifically precise, is not understood by most drivers. Despite the difficulties of fitting these offences into the traditional paradigm, it is concluded that a way of accommodating them in the legal theory must be found. The possibility of an alternative paradigm is canvassed, perhaps being justified by the success of the drink-drive legislation in reducing death and injury on the roads, and by recognising a special responsibility on drivers, a duty which may have to include foregoing some of the protections afforded by the traditional criminal law paradigm.